Oral Answers to Questions

DEFENCE

The Secretary of State was asked—

Iraq

David Taylor: If he will make a statement on the security situation in Basra.

Andrew Selous: What recent assessment he has made of the security situation in Iraq; and if he will make a statement.

Des Browne: I am sure that the whole House will join me in sending condolences to the families of Private Joseva Lewaicei and Private Adam Morris, who were killed on Saturday 13 May north of Basra city. Our thoughts are also with the soldier injured in that incident, with the two soldiers who were injured in the incident at the weekend in Basra, and with their families.
	Although insurgents continue to pursue a policy of violence and intimidation with the aim of disrupting the political process in Iraq, the majority of attacks are confined to four of the 18 provinces. However, their efforts have not precluded the formation of a new Government of national unity in Iraq. As my right hon. Friend the Prime Minister said this morning, that is a huge step forward which deserves international support. In Basra, and across Multi-National Division (South-East), despite recent tragic events the security situation remains relatively calm.

David Taylor: As my right hon. Friend said, Adam Morris, a 19-year-old soldier from Hugglescote in north-west Leicestershire, was killed by a roadside bomb near Basra nine days ago along with a colleague from the Royal Anglian Regiment as they travelled in a Land Rover protected only by composite fibreglass. As well as extending deep condolences to Adam's family and friends, the House will endorse the  Leicester Mercury letter-writing campaign to boost the regiment's morale. Does the Secretary of State agree that a large majority in both the United Kingdom and Iraq want an early withdrawal of foreign troops? Does he think that partition is necessary to prevent the country from descending further into an anarchistic hell-hole?

Des Browne: May I first commend my hon. Friend for his support not only for his constituent's family, but for the Royal Anglian Regiment? I met members of the regiment in Basra last week, and I can reassure him, his constituents and, indeed, his local newspaper, that the morale of those soldiers was very high. In my short time in this job I have been struck by how often our forces meet our expectation, whatever adversity they face, that they will maintain the highest standards not only of morale but of discipline, application and duty. On the meat of his question, it is of course our ambition and intention to remove our troops from Iraq, but we shall do so in the proper context, which has been set out on numerous occasions at the Dispatch Box and involves the nature of the threat, the capacity of Iraqi forces to provide security for their own people, the capacity of their Government both at national and provincial level to govern, and our own ability to respond to support the Iraqi Government's ambitions. I can say no more than that in support of our position in Iraq.

Andrew Selous: Does the Ministry of Defence believe that the missile that downed our Lynx in Basra on6 May was sold by Russia to Iran, and has the Army asked for any extra resources to deal with the current attacks against it?

Des Browne: The hon. Gentleman will know—I made my position clear in my statement to the House after the Lynx helicopter crash—that I will not speculate on any aspect of that crash, as a board of inquiry and an investigation are under way. Given the nature of that investigation, it would not be helpful to speculate at the Dispatch Box about the way in which the helicopter was brought down until it is concluded. That is my position, and it would not be helpful to be drawn into further speculation.

David Winnick: Does my right hon. Friend agree that, whatever views one took about the original invasion, there should be total condemnation of the so-called insurgents who carry out, day after day, the most horrifying crimes against the Iraqi people? Should not the newly elected Government in Iraq accept the fact that our troops cannot remain there indefinitely? They should concentrate on the task before them, bearing in mind, as I have said, the fact that there will come a time when our troops must leave?

Des Browne: My hon. Friend would do well to reflect on the words of the new Prime Minister of Iraq, who spelled out clearly the priorities of his Government for the economy, security, militia and the provision of governance, at both national and provincial level, for the people of Iraq. It is politics that will resolve the issues that face the people of Iraq. My hon. Friend is right that whatever the motives of those who seek to use violence—whether they are insurgents or, as I was advised in the south-east, those who, in the absence of a central Government, are positioning themselves economically or politically to take advantage of that situation—there is now a Government of national unity in Iraq, and in the words of others who have spoken on that today, there is no reason now for those insurgencies to continue. The destiny of the people of Iraq is in their own hands. We are all working towards a situation where, in terms of security and governance, the Iraqi Government will be able to look after their own people and there will be no need for the continued support of multinational forces. Until that time comes, we have a duty to continue to support that Government.

Bob Spink: The right hon. Gentleman will have heard the Prime Minister's words this morning about an exit strategy for our troops in Iraq. Can he give the House some detail—for instance, about the length of time it might take for our troops to finish training the Iraqi security forces, so that they can then be brought home?

Des Browne: When I visited Maysan province and in particular Camp Sparrowhawk last week, I was struck by the level of competence of the 4th brigade of the 10th division of the Iraqi army. That is my only personal experience of their competence, ability and determination to take command of the security situation, but even that observation was informed by other, more experienced military people who were in my company, who were able to point out to me what I ought to be looking for in relation to that competence. I am not able at this stage to say when those forces—army and police—will be capable of looking after their own security, but very experienced military personnel who serve in our forces in the south-east of Iraq tell me that they have made significant progress towards that objective over the past year or so. They also tell me that in three out of the four provinces for which we have responsibility in south-east Iraq, progress in governance and security is well advanced.

Andrew MacKinlay: May I take the Secretary of State back to the carefully crafted reply that he gave a few moments ago to the hon. Member for South-West Bedfordshire (Andrew Selous) about the inquiry that is to be held into the loss of our troops as a result of a missile? Will he assure the House that the inquiry will cover the source of that missile, rather than just the incident itself? That is what I felt the Minister—unintentionally, of course—tried to avoid. We want an assurance that if intelligence and information are available they will be disclosed at the inquiry and subsequently made public, and that the inquiry's remit will cover that.

Des Browne: I did not seek even to confirm in the House that the helicopter had been brought down by a missile. If anything I said may have inadvertently led people to believe that I was imparting that information to the House, I did so in error, but I do not believe that I did. As I told the House when I made my statement last Monday, when the investigation is concluded the board of inquiry report will be published, to the extent that it can be. Until then, I will not be drawn into any speculation on any aspect of the investigation. I, as the Secretary of State for Defence, do not direct the investigation. It is conducted according to a set of rules that apply and have applied for a significant time. It will be conducted independently of any direction by Ministers, it will be conducted appropriately, and it will report on the issues that it thinks are relevant to the matters before it.

Julian Lewis: May I associate the Opposition with the Secretary of State's condolences to the families of those who lost their lives on active service in Iraq?
	Does the Secretary of State accept that, time after time at the Dispatch Box, his predecessor stated that it would be absolute folly to say anything about timetables for withdrawal other than when the job is done? Does he endorse that sentiment, and, if so, will he use his best endeavours in the Cabinet to put an end to the stream of articles and leaks that imply that withdrawal is on the cards, so that the Prime Minister can leave a legacy as a peacemaker? We do not want the Prime Minister to leave a legacy as a lethal version of the grand old duke of York.

Des Browne: When history considers the contribution of my right hon. Friend the Prime Minister to conflict resolution in a number of theatres around the world, it will significantly record that he has made a major contribution to peace in a number of parts of the world. I am not aware of any leaking of articles or briefing about a timetable. What I have sought to do, as indeed did my predecessor, is to give some clarity to the conditions that will need to be fulfilled before it will be appropriate for our forces to withdraw, first part of the way, and then fully, from Iraq. Like my predecessor, I have sought not to put a timetable on that, because I do not think that that would be in the interests of either the people of Iraq or the security of our own forces who are serving in Iraq, often in dangerous circumstances.
	I fully agree that there needs to be some clarity in the description of the process, and I think that that is clear and that most people understand what the conditions need to be, but it is appropriate, when there is progress along that direction of travel, for that to be reported to the House. During my visit to Iraq, those whom we charge with the responsibility of making such assessments on the ground indicated that in a substantial part of Iraq for which we have responsibility, significant progress has been made.

Defence Sector (West Midlands)

David Wright: If he will estimate the number of defence sector jobs in the west midlands region.

Adam Ingram: The Ministry of Defence employs some 5,600 military and some 6,000 civilian staff in the west midlands. It is estimated that a further 6,500 people are directly employed in defence-related industries in the region.

David Wright: Will my right hon. Friend join me in thanking the people of Shropshire for the outstanding service that they have given to the Ministry of Defence during the past few decades? Does he agree that we have an opportunity to develop a defence employment hub in Shropshire, with the retention of jobs at Sapphire House in Telford, the expansion of jobs at Donnington in The Wrekin and the awarding of the defence training review to Cosford?

Adam Ingram: As well as paying tribute to the people of Shropshire, I pay tribute to my hon. Friend, who has been fully determined in pursuing a range of issues, some of which have played to his advantage, although not completely in the way that he sought. He listed a range of events. If on assessment they remain or are built on, that will be good news. If we have to make a decision that, in the interests of defence, we co-locate headquarters or rationalise to ensure that we make best use of resources, I am sorry but I will have to give him bad news—but I will do that when I make my decision.

Mark Pritchard: Given the skills, dedication and commitment of Defence Logistics Organisation workers in Shropshire and the potential co-location to the south-west, is it not incumbent on the Ministry of Defence to have an open, transparent and fair consultation process? If so, why has the Ministry already purchased the building in Bristol that is being investigated by the Auditor General?

Adam Ingram: Just because it is being investigated does not mean that it is wrong, and the hon. Gentleman should not prejudge. As has been explained before, the property was purchased as a piece of developmental work, looking at possibilities for the co-location of headquarters. Had we delayed purchasing the property when we had the opportunity to do so and then decided to so co-locate, it would have cost us more money. This is a judicious piece of positioning. It does not mean that that will be the final conclusion. I take exception to the hon. Gentleman's approach on openness and transparency. I have met him and others, and I will continue to do so. We operate openly and transparently in arriving at decisions and explain them afterwards in consultation with the trade unions and staff interests. I am sorry that he takes a different view, but I would not have thought that that was based on his experience.

Ian Austin: It is not only west midlands defence sector jobs but aerospace engineering and training excellence that make the case for locating the defence training contract at Cosford so strong. The region's universities are intrinsically involved in Cosford's work, and there are fantastic transport links, including the M54 and a direct rail service. I invite the Minister to visit the west midlands to see at first hand the fantastic opportunities that Cosford offers the MOD.

Adam Ingram: I have visited Cosford and I am only too well aware of the situation. My hon. Friend knows that the matter is being judged on what is best for defence and for the defence training review. It so happens that I am not the Minister who is directly responsible for the matter, although I have an interest in the outputs. However, the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), has heard what my hon. Friend has said, and he will take it into account.

Heavy Lift Capability

Robert Goodwill: If he will make a statement on the heavy lift capability of the Royal Air Force.

Adam Ingram: The heavy lift capability of the Royal Air Force is provided by the C-17, and both the TriStar and the VC10 offer some lift capability as a secondary role. We keep our airlift capability under review to ensure that we have access to sufficient capacity to support operations.

Robert Goodwill: If, as expected, Ministers decide to take our ageing, slow and vulnerable fleet of Sea King helicopters out of mothballs—many of those aircraft are as much as 35 years old—to ferry our brave lads and lasses around Iraq and Afghanistan, can we also expect to see Ministers being ferried around Whitehall in Austin Allegros and Ford Cortinas?

Adam Ingram: I will not dignify the hon. Gentleman's question with a response, given the subject matter. He is asking about rotary lift, which has nothing to do with heavy lift. We plan to hold a competition to find a new medium-lift helicopter to meet our medium-term needs, and it will proceed in due course. In the meantime, we must examine our capacity and capabilities on rotary lift, and we are considering whether Puma and Sea King helicopters can be modified or refurbished for short-term use. We are also exploring how we can get more out of existing Merlin and Chinook helicopters and the feasibility of leasing aircraft. We are aware of the issues that must be addressed: there may well be a short-term solution, but there will be medium-term and long-term solutions, too, which means significant investment in our air capacity in this country.

Bill Olner: The Minister will be aware of last week's successful flight over London and into Heathrow by the A380 Airbus, which is powered by Rolls-Royce aero-engines. Has that made it more relevant that there will be a military version of that aircraft powered by those engines?

Adam Ingram: My hon. Friend knows that we have leased four C-17s, and we want to buy out that lease and to purchase another C-17. The A400M is the new generation of heavy lift, and it is due to enter service in 2012. It has been long awaited, and I have no doubt that when it comes into service it will prove to be a very capable aircraft. No doubt my hon. Friend hopes that it will have Rolls-Royce engines—if that is not the case, I will look forward to receiving further representations on the matter.

Mark Lancaster: By world standards, the Royal Air Force has no heavy lift capability. Our four C-17s—there are soon to be five—are incapable of sustaining one brigade deployed overseas. When will the RAF get a genuine heavy lift capability?

Adam Ingram: The C-17s were intended to plug a gap arising from a previous procurement hiatus with the A400M, when we realised that we needed that heavy lift capability. The A400M has been long awaited. I will not remind the hon. Gentleman of when it was first procured, nor do we necessarily need to rehearse the delays associated with it under previous Administrations. Let me just say that we identified the shortfall. We have leased four C-17s, which we will buy out, and we are looking to purchase another one. We await the 25 A400Ms for which we are under contract.

Iraq

Derek Wyatt: What recent assessment he has made of the role of British troops in supporting the development and training of Iraqi security forces.

Des Browne: I can confirm that British troops continue to make progress with the training and development of the Iraqi security forces in Multi-National Division (South-East). We have a number of initiatives under way, all of which are designed to enable the Iraqis progressively to take on responsibility for their own security—for example, by training the Iraqi police service and training and sustaining the 10th division of the Iraqi army.

Derek Wyatt: I thank my right hon. Friend for that response. Is he in a position to comment on the bravery of the Iraqi security guards in helping when our Lynx helicopter was shot down 16 days ago? My real question is this: when we have left, what will be the long-term legacy with the Iraqi security forces? Will they be allowed to come to Sandhurst, will we have intelligence sharing with the Met police, and so on?

Des Browne: My hon. Friend is right to point out—as does General Cooper, who commands our forces in south-east Iraq—the contribution that the Iraqi security forces and police made to the calming of the situation after the Lynx crash. There had been other evidence of the improving capability of the Iraqi forces in their contribution to the referendum and to the security of the general election in December last year. From our point of view as a Government, we will continue to offer the Iraqi Government support on a bilateral basis, but it will of course be for them to decide what continuing relationship they want with us. As they have only today formed the first democratically elected Government, it might be a bit premature for me to describe from the Dispatch Box what our continuing relationship with them will be.

Nick Harvey: What assessment has been made of the extent of militia infiltration of the Iraqi security forces and police, and what is being done to deal with that? Does the Minister believe that a programme, along the lines of those which worked successfully in the Balkans, of disarmament, demobilisation and reintegration, would be the logical next step in Iraq?

Des Browne: My understanding is that the new Iraqi Government include just such a project—as well as a general proposal to deal with militia—in the description of security priorities. Part of the programme that they describe concerns the demobilisation, disarmament and integration of militia into the security forces of Iraq. That process must be dealt with very carefully, ensuring that one does not integrate into those forces elements that one would want to eradicate.
	The hon. Gentleman is right to suggest that the Iraqi police force and, to a lesser extent, the Iraqi army, had been infiltrated by forces that were there for, shall I say, less than benign purposes—in fact, quite malevolent purposes. The capacity to deal with that in the area for which we have responsibility had for some months been impeded by the lack of a proper relationship with the provincial council in the south-east. Ironically, the process of re-engagement came to fruition the day after the horrific crash of the Lynx helicopter. Last week, I was able to see and hear from our commander on the ground in Iraq that that process is moving forward. Through that process, and by supporting the provincial Government and the chief of police in Basra, we will be able to deal with the problem that the hon. Gentleman identifies.

Kevan Jones: I have seen first hand in Basra the work of British armed forces and police forces in training the Iraqi police and security services. Will my right hon. Friend join me in paying tribute to the work that those individuals do, sometimes in very dangerous personal situations? Does he agree that that training is bearing fruit? My hon. Friend the Member for Sittingbourne and Sheppey (Derek Wyatt) cited the example of the downing of the Lynx, where the Iraqi security services were able to take control of the situation very soon afterwards.

Des Browne: My hon. Friend speaks from some experience. Let me emphasise to hon. Members who have visited our forces in Iraq to see the position there that our troops on the ground greatly appreciate that. Sometimes they believe, for whatever reason, that their work and achievements are not fully appreciated in the United Kingdom, and it is helpful when parliamentarians take the time and trouble to go and see for themselves.
	The capability of the Iraqi police force in particular has recently improved significantly. That is substantially down to those who have trained them. A significant representation of police officers from throughout the United Kingdom is involved in that, and I have no hesitation in paying tribute to their work. I rely on those people's assessment of the improvement in the Iraqi police force, and not on my observations, in reporting any improvement to the House.

Military Deployment (Afghanistan)

Adam Holloway: If he will list the security tasks being undertaken by the UK armed forces in support of the Afghan Government.

Des Browne: Our armed forces undertake a range of tasks in support of the Government of Afghanistan through the international security assistance force, the coalition and bilateral arrangements. Those are aimed at helping to create a secure and stable environment in which the rebuilding of the country can proceed.

Adam Holloway: Why are our armed forces still planning to conduct joint police patrols when the police in Helmand province are wildly corrupt and, as yet, unreformed? To what extent is the Secretary of State encouraging President Karzai to use the detailed coalition intelligence material that we possess to support the prosecution of major drug traffickers with close political connections?

Des Browne: I say to the hon. Gentleman, who I know takes a significant interest in those matters, through not only his membership of the Defence Committee but his recent experiences of visiting Afghanistan, that I appreciate his informed interest. I reassure him that, in our communications with President Karzai, we encourage rooting out corruption, wherever it may be in the structures of the Government of Afghanistan. I have no personal experience of that, but the reports that I receive from my Cabinet colleagues who have met President Karzai are that he is a ready interlocutor on such matters.
	The first part of the question was about patrolling with the Afghan police. Just as in Iraq, the process of our engagement with the Afghan police means that we can identify their training needs, improve their performance and help to root out the sort of behaviour that the hon. Gentleman identifies as unacceptable.

Brian Jenkins: Will my right hon. Friend send a clear message today from the Government to the Taliban, who watch and read European media, that NATO will not be a soft touch when it takes over from the Americans? Will he also send a message to our European colleagues to ensure that the rules of engagement that they allow their troops to use remain robust and that any attack on NATO forces will be met with strong resistance and retaliation?

Des Browne: I have every confidence in our NATO allies and their ability to carry out the tasks that they have accepted in the various parts of Afghanistan to which they have been deployed. I have enough concern about my responsibilities, without directing those who are responsible for delivering those tasks and in whom I have confidence.
	However, I agree with the first part of my hon. Friend's question. A strong message is being conveyed, not only to the Taliban but to others who are engaged in violence in southern Afghanistan where deployment is taking place, that we will meet violence with a robust response when necessary to protect not only our troops but Afghan troops who are deployed in that area to deliver security to it.

Vincent Cable: The original parliamentary statement said that the Afghan deployment was to be for three years, at a cost of £1 billion. Now that Ministers and commanders are talking about being there for the long haul, what are the Government's working assumptions about the length of time and the cost involved?

Des Browne: The hon. Gentleman will be aware that in the Defence Select Committee's report on the supplementary estimates, a request was made for a breakdown of the £1 billion cost so as to give Parliament some information on how the money was being spent. In response to that request, the MOD produced such a breakdown. The hon. Gentleman will know, as I do from my previous job, that we make plans for public spending for three years at a time, at the most. I believe that the role of our troops in Afghanistan lies at the heart of his question, and there is significant clarity about that role. I also accept, however, that we will not be able to deliver the outcome that we hope to deliver within a time scale of three years.

Chris Bryant: The geography of Afghanistan dictates that helicopters will be absolutely essential to delivering secure outcomes on the ground. However, there have been rumours that the military have been asking for more helicopter support than has been made available. Will the Secretary of State comment on those rumours? Is he absolutely confident that the people on the ground in Afghanistan have the helicopter support that they need?

Des Browne: I have no intention of commenting on rumours. However, I can say to my hon. Friend that the deployment of our total resource—including troops on the ground, and attack and support helicopters—is based on the advice given to the MOD by people with experience of such troop deployment. I am satisfied, because they have told me specifically that they have the necessary resources to carry out the task in hand.

Liam Fox: The Secretary of State will be aware of last night's attack on Panjwayi, a known Taliban stronghold. He will also be aware of the changing security situation in southern Afghanistan, where more than 200 rebels have reportedly been killed in the past two weeks during the fiercest fighting since the fall of the Taliban in 2001. The right hon. Gentleman's predecessor confirmed that our troops were engaged not in counter-terrorism but in counter-insurgency, where we may have to strike first. Are the Taliban considered to be terrorists or insurgents, for the purposes of our mission in Afghanistan?

Des Browne: I do not think that it assists the definition of our task to categorise a group of people in one way or another. The role of the international security assistance force in Afghanistan, particularly in regard to our deployment to the Helmand province, has often been stated. Indeed, its role and tasks are described on ISAF's website. In summary, we are there to support the provincial reconstruction team. Our focus will be on assisting the Afghan Government to create the security that provides the space for reconstruction. Clearly, the local environment is complex, as the hon. Gentleman's question suggests, with narcotics, criminality, the Taliban and tribal rivalries all present. The House should be in no doubt, however, that our forces have the capability and the freedom to do what is required to safeguard the reconstruction effort in that challenging environment. The hon. Gentleman is correct to say that there has been a recent increase in violence, but that response was to be expected from those insurgents and other elements in southern Afghanistan who wish to resist the deployment of ISAF troops to the area.

Liam Fox: That answer will do nothing to dispel the fears that the mission in Afghanistan is less than clear. In a recent written answer, the Secretary of State's predecessor said that the
	"Taliban have been encouraging Afghan farmers to grow opium poppy and offering protection to farmers against eradication of their poppy crop."—[ Official Report, 4 May 2006; Vol. 446, c. 1812W.]
	There is clearly a risk that the counter-narcotics measures taken in Afghanistan will push farmers into the arms of the Taliban, and that that would undermine the whole mission. Obviously, to avoid that, alternative incomes must be made available, and the cost of that is likely to increase as the destruction of poppy crops increases. Can the Secretary of State therefore explain why the Secretary of State for International Development has said of alternative livelihoods:
	"The forecast spend for this year is in the region of £45 million and we hope to maintain similar levels of funding in future years."—[ Official Report, 27 February 2006; Vol. 443, c. 53W.]
	What implications does that statement have for the progress of counter-narcotics operations?

Des Browne: The answer is that those projects will be conducted differently in different places. Some of the projects will require significant investment at the outset to build the infrastructure required to enable local capacity to deliver such alternative livelihoods. I do not know the detail of the timeline of that expenditure, but £45 million will make a significant contribution towards offering alternative livelihoods to those engaged in the growing of poppies and other related activities. Of course, I should add that we are not the only people who are making contributions to fund alternative livelihoods in Afghanistan.
	The suggestion at the heart of the hon. Gentleman's question is perfectly correct: unless those who are currently involved in poppy cultivation can be engaged in other activities that will provide a livelihood for them and their families, we will not be able to turn them away from that production. The focus of our forces in Helmand province is therefore clear: to create a security situation that will allow us to do just that.

Paul Flynn: In spite of the courageous professionalism of our troops, the poppy crop in Afghanistan this year is likely to be at a record high. Are we not on a mission impossible that has already led to increased violence, will certainly drive farmers into the hands of the Taliban and could lead us into a British Vietnam? Surely a practical alternative would be to divert poppy crops into the manufacture of diamorphine, of which there is a world shortage.

Des Browne: That specific alternative was considered in detail and rejected by those who have experience in such areas. However, the development of democratic control of Afghanistan is at the heart of our mission, because that will prevent Afghanistan from ever again becoming a training ground for international terrorists. While we have had success in the northern and western parts of Afghanistan, the southern part poses a much greater challenge. At the heart of that challenge, of course, is our ability to retain the consent of the people of the south by providing them with practical examples of how proper governance, security and alternative livelihoods can offer a stable and better economic future. I believe that that is a noble cause, which deserves the support of both sides of the House. For as long as I have the responsibilities of Secretary of State for Defence, I will continue to support those troops whom we have asked to perform that role and those others whom we have asked to deliver reconstruction projects.

Far East Internees

David Burrowes: What progress has been made in finalising the settlements for second world war far east civilian internees.

Tom Watson: Officials have drafted detailed rules for the new 20-year residence criterion and held initial discussions on those with the chairman of the Association of British Civilian Internees of the Far East Region. Revised rules reflecting those discussions will be considered by the working group—which my predecessor, my hon. Friend the Member for Islwyn (Mr. Touhig), announced on 28 March—at its meeting on 25 May. We aim to implement the new criterion as soon as possible.

David Burrowes: I welcome the new Minister to his post. Will he provide an assurance to my constituent, Diana Elias, and other former far east civilian internees, that, by the time of the meeting with her next month, her compensation will be settled? Will the Government adopt in full the recommendations of the ombudsman in relation to this matter and ensure that they bring to an end this sorry chapter in their history?

Tom Watson: I thank the hon. Gentleman for his kind words. I am aware of the work that he has done in this respect through his contributions to the work of the Public Accounts Committee, and that he has a powerful constituency interest.
	This week I shall meet Ron Bridge, chairman of the Association of British Civilian Internees of the Far East Region, and I hope to meet the chairman of the all-party group on far east prisoners of war and internees. I share the hon. Gentleman's sense of urgency, and hope that we can deal with the matter as swiftly as possible. I can tell him that according to the evidence I have seen, Mrs. Elias will be eligible for the ex gratia payment.

Andrew Dismore: I welcome my hon. Friend to his position, and pay tribute to his predecessor, who took a very positive attitude to sorting out this difficult problem.
	The scheme has been largely successful: a good many people have received compensation. However, one group has been excluded—unfairly, in the view of the all-party group. Is it not important for their needs to be recognised by means of an alteration that is not too complex, is easy to understand and provides a fall-back position for any hard cases that may still be excluded? We need a solution as quickly as possible. I am pleased that I shall be meeting my hon. Friend, I believe on Thursday, to try to work out some of the details.

Tom Watson: I thank my hon. Friend for what he has said. He will be aware of the context of the problem to which he has referred: 25,000 people have already received ex gratia payments, and about 500 more will receive them if we extend eligibility. I am very keen to get the system right. I understand the pressures from the House for a result, but the devil is in the detail. I hope that we can resolve the problem, and that I can report back to the House as quickly as possible.

Mark Harper: Let me take this first opportunity to welcome the Minister to his post. I look forward to jousting with him across the Dispatch Box.
	When the Minister's predecessor made his statement about the 20-year rule on 28 March, he said that he would meet the working group immediately after the Easter recess and hoped to make a statement to the House a week or so later. We have been waiting for over a month now. Obviously there have been reshuffle-induced delays that may have been unavoidable, but can the Minister tell us when he will be in a position to outline the details of the 20-year rule? May I also pick up the point made by the hon. Member for Hendon (Mr. Dismore), and ask whether he will ensure that each of the cases not resolved by the rule will be reviewed on its merits so that we can close this chapter once and for all?

Tom Watson: I thank the hon. Gentleman for his kind words. I shall be meeting the working group this week. I want to ensure that the matter is cleared up as quickly as possible, but I cannot give a date for an announcement until I have seen the details.

Denis MacShane: I welcome the new Minister to his post. May I ask him to pay attention to the dossier? It is 10 years almost to the week since I first raised, in an Adjournment debate, the issue of the internees. I took a delegation to meet members of the then Conservative Government, and was utterly rebuffed, because the Conservative party never looks after the people who have served our country. It took a Labour Prime Minister— [Interruption.]

Mr. Speaker: Order.

Defence Industrial Strategy

Nadine Dorries: What assessment he has made of the implications for defence research of the defence industrial strategy.

Adam Ingram: The defence industrial strategy clearly highlighted the importance of research and technology as a vital enabler of our national defence capability. As such, research and technology was embedded throughout the strategy. The chapter on "technology priorities to enable defence capability" draws together the critical underpinning and cross-cutting technologies that need to be sustained in the United Kingdom.

Nadine Dorries: The defence industrial strategy clearly stated that the technology advantage we enjoy today is the result of past investment, and warns that we are now in danger of falling behind our allies and even the emerging economies. Why, then, have the Government halved spending on research and development since 1997, cutting it from £900 million to £450 million?

Adam Ingram: The hon. Lady should go back to those who advised her, and find out when the curve started to go down. There were significant cuts in research and technology investment in the 1990s, under a Conservative Government.

Gerald Howarth: Labour has been in office for nine years.

Adam Ingram: Yes, we have been in office for nine years, and we have now established a defence industrial strategy. It must deal with some difficult timelines in, for instance, ensuring that research and technology are specific to defence needs and secure value for money and the desired outputs. It must also take account of the role of the innovative sector and of small and medium-sized enterprises, which would argue that they have been neglected for too long. There are some key core capabilities in that sector, which are sometimes bypassed. Those capabilities should be identified, and the barriers lifted.
	The important point is that out of the criticism is now coming something of substance. Expenditure is being stabilised, and the plan is to raise it in line with inflation in the coming years. Meanwhile, a review will be undertaken—it will report at the end of the year—to see whether more needs to be done. So, although we may collectively have taken decisions that, overall, have not been to our benefit, we are addressing that issue, and the hon. Lady should thank this Government for doing so.

Lindsay Hoyle: The Minister is going on about the industrial strategy, but I should tell him that a hole has already been blown in it, thanks to our inability to produce bullets, artillery shells or bombs independently , as a result of the transfer of boxer caps and initiators to Germany, France and Switzerland. What message does he have for those loyal workers at Royal Ordnance who have lost their jobs?

Adam Ingram: I sometimes wonder whether my hon. Friend ever reflects on the fact that Britain is also an exporting nation. Is he saying that those countries should not purchase our equipment or take on board some of our technologies? On munitions supply —[Interruption.] My hon. Friend knows some of the reasons why the factory closed. An industrial accident resulted in —[Interruption.] He knows the background. The company that owns that supply chain is looking at this issue very closely with the Ministry of Defence, to ensure that we get guaranteed supplies in those critical areas.

Lindsay Hoyle: France, Germany and Switzerland.

Adam Ingram: My hon. Friend keeps on hectoring about Germany and other countries. They are our allies—does he want Britain to stand alone? Does he think that we should have no allies and not trade? That would not help this country at all.

Gerald Howarth: It is extraordinary that, at a time of unprecedented military activity, the Minister comes to the Dispatch Box to accept that under this Government, essential expenditure on R and D has halved. In addition, he will know that the head of the European Defence Agency has called for 20 per cent. of the EU nations' defence research spending to be spent collectively. How much of the UK's already reduced research budget does the MOD intend to spend in this way? Who will own the resulting intellectual property? Will this move not endanger our relationship with the United States? Will it not serve, moreover, to undermine a key principle of the defence industrial strategy to which the Secretary of State put his name—that we need to maintain certain key capabilities in the United Kingdom—or is the real truth that this is just further evidence that defence policy is now seen by the federalists as the best vehicle for securing the united states of Europe?

Adam Ingram: Every sector involved in defence and procurement has welcomed the defence industrial strategy. That is not to say that it is completely fixed or that everyone is in total agreement, but trade unions and industry have welcomed it, because we have not previously had a clear exposition of the way forward. What are our future horizons? What type of equipment are we likely to need, and what are the industry's core capabilities to provide it? What research do we need to undertake to underpin all this? We have embarked on a close examination of these issues, and as I said to the hon. Member for Mid-Bedfordshire (Mrs. Dorries) in answer to her original question, there are some very tight timelines to work to. We have to get this right, but such carping from the sidelines does not accord with the view of industry or the trade unions, and it certainly is not in line with what we believe to be right for defence.

Army Discharge

Jim Cunningham: How many serving soldiers from Coventry, South and the midlands have made an application for discharge.

Tom Watson: There are no centrally held records that identify the town or region of origin of those personnel who have applied for discharge; however, I will make available those records that specify the nationality of such applicants. We are constantly seeking to improve our information systems, and I have asked officials to explore whether we can offer such a level of detail in future.

Jim Cunningham: I thank my hon. Friend for that answer and I welcome him to the Dispatch Box. What is he doing about recruitment and retention in some of the famous west midlands regiments, such as the Royal Warwickshire Fusiliers?

Tom Watson: I thank my hon. Friend for that question. I know that he has been a campaigner on behalf of the Royal Regiment of Fusiliers, which has recently been given an additional grant to run a marketing campaign locally to help to make good the shortfall in recruits across two of its battalions. We all know that if we want the best armed forces in the world, we have to recruit the best people.

Philip Hollobone: Is it not the case that our armed forces are now overstretched as never before and that applications for discharge are likely to increase, not fall? What steps are the Government taking to pre-empt the situation?

Tom Watson: I do not accept the premise of the hon. Gentleman's question. For example, the outflow from the Territorial Army was 16,000 for 1999-2000 and last year it was only 8,000. We are working on the issue. Times are challenging, but we have to find innovative ways to recruit and retain military personnel, and we continue to do so.

Afghanistan

Ashok Kumar: If he will make a statement on the security situation in Afghanistan.

Des Browne: The situation across Afghanistan is broadly stable, but in the south it has deteriorated in recent weeks. This is not a surprise. The arrival of international troops and additional Afghan forces into an area that was largely ungoverned was always likely to create some response. Those elements who stand to lose out as the Government of Afghanistan spread their authority will try to disrupt our efforts early. But we have always anticipated that and planned accordingly.

Ashok Kumar: I welcome my right hon. Friend to his new post and praise our forces for taking on the Taliban. My right hon. Friend has my strong support for all the effort that we are making to remove the Taliban, and we should not move a millimetre from that policy. What support are we getting from the Government of Pakistan, especially on the Pakistan-Afghanistan border, in our efforts to remove the Taliban?

Des Browne: I thank my hon. Friend for his welcome and his support for the work that we are doing in Afghanistan, and especially for those whom we have charged with that responsibility. Because of the geography, the border with Pakistan is porous and difficult to control, but the Pakistani authorities have made extensive efforts to improve the rule of law along their border with Afghanistan and, as a consequence, have suffered significant loss of life on occasions. We will continue to work with the Pakistan authorities to make certain that appropriate action is taken to ensure that the border area does not become a safe haven for the Taliban.

Peter Tapsell: May I put it to the Secretary of State that to anybody who has served in the armed forces in Islamic countries, or who knows Afghanistan, ministerial replies—I do not blame him particularly, but the whole Government—seem totally unrealistic? Vietnam has been mentioned, but the Americans had half a million troops there. A shortage of helicopters has been mentioned, but the Russians lost 60 of them, and they had 300,000 troops there. The idea that our gallant group of 5,000 people will make any useful impact is sheer madness.

Des Browne: In anticipation of being asked that very question at some stage, I asked some very experienced currently serving officers of the highest rank of the British armed forces. They said to me in terms that those who make that point do not, unfortunately, have a proper understanding of the modern Army and the contribution that it can make in such circumstances. Those officers pointed out to me that the most significant difference between what we seek to do in Afghanistan and what others tried to do in the past is that we do it in the context of a democratically elected Afghanistan Government, who have a capacity to bring to bear on their own citizens, and with a significant level of international support. While I recognise that the hon. Gentleman has experience in his past that I do not have in mine, he will forgive me if in this matter I depend on the advice of those currently serving.

Iraq

Martin Linton: what proportion of UK forces which have served in Iraq have been reserve forces.

Adam Ingram: On average, reservists have provided some10 per cent. of the service manpower supporting Operation Telic.

Martin Linton: Will my right hon. Friend join me in paying tribute to the 202 members of the London Regiment who served in Basra, and does he agree that the greater age, experience, maturity and diversity of members of the Territorial Army has been a great asset to the coalition forces in Basra in establishing better relations with the local population? Does he agree that that proves the value of reserve forces in peacebuilding and peacekeeping roles in the future?

Adam Ingram: I agree entirely with the sentiments expressed by my hon. Friend and, like him, pay particular tribute to the London Regiment. I recently visited 7 Brigade, the Desert Rats, which has just returned from Iraq, and I was very struck, as I have been for many years, by how integrated the TA is with the regular forces. It is impossible to tell them apart in terms of training, commitment, professionalism, dedication to task and their willingness to defend the interests of this country. The TA is a formidable body of men and women no matter where it serves—whether in Basra, which my hon. Friend mentioned, in Kosovo, Bosnia, Afghanistan or elsewhere. Wherever we post the TA, its members serve with the highest distinction. By rebalancing the TA, we have tried to give it a new focus and structure that will make it even better, which would be a big achievement.

Patrick Mercer: I was very interested to hear the Minister talking about the integration of the Territorials and reservists with the regular Army. The fact remains, however, that many wounded reservists and Territorials are treated disgracefully when they take off their uniforms and finish active operations. Can the Minister assure me that our brave Territorials and reservists will be treated properly in future and not have to depend just on local NHS facilities?

Adam Ingram: I agree with the general sentiments that the hon. Gentleman expresses, but it has been ever thus, and we have to address some of the issues. One of the early lessons we learned from Operation Telic and from Afghanistan was that individual specialists were returning not to a unit, base or barracks but to their normal job—or sometimes not—and isolation was causing them problems. We have embarked on a complete examination of the provision of that support. I mentioned my visit to the Desert Rats; they operate a system known as "home rat" for families left at home, not just in Germany but for TA families too. The proposals for our new mental health care initiative offer another good example of how we are addressing the issue. We have learned some valuable lessons about something that was not new for this Government, and we are addressing it.

Points of Order

Michael Fabricant: On a point of order, Mr. Speaker. As you may know, all 12 Members of Parliament in Staffordshire—Labour and Conservative—oppose the merger of the Staffordshire ambulance service with the West Midlands ambulance service. Last week, the Secretary of State for Health wrote to all Members of Parliament. In her note, she said that the Staffordshire ambulance service would be reprieved from the merger for up to 24 months. When the Minister of State, Department of Health, the hon. Member for Leigh (Andy Burnham), made his statement in the House he was questioned closely about the matter, but he neither confirmed nor denied that the merger would take place within 24 months. Now we hear that there may have been a drafting error in the written statement, which is causing great confusion among Members and people who work in the ambulance service. There is more of a shambles than at the Home Office, and that is saying something.
	Is it possible, Mr. Speaker, for the Minister or the Secretary of State to make a written statement before the recess to clarify once and for all whether the Staffordshire ambulance service is to be merged with the West Midlands service?

Mr. Speaker: The appropriate Minister will have heard what the hon. Gentleman has just said. There is nothing to stop him tabling a parliamentary question to seek clarification of the matter—

Michael Fabricant: As I have done.

Mr. Speaker: Perhaps after the recess week the hon. Gentleman might apply for an Adjournment debate.

Gerald Howarth: On a point of order, Mr. Speaker. Following the many tributes to the late Eric Forth from both sides of the House last week, I seek your advice on a matter relating to the hon. Member for Romsey (Sandra Gidley), who wrote a piece headed "Letter from Westminster", which I assume is a regular column in her local newspaper,  The Romsey Advertiser, in which she referred to the Climate Change and Sustainable Energy Bill and her fear that the "very obstructive" actions of my hon. Friend the Member for Christchurch (Mr. Chope) and Eric Forth would scupper the Bill. She continued:
	"In the end all was well. I don't know whether this had anything to do with the fact that Eric Forth could not turn up due to being 'under the weather'. Very appropriate excuse for non attendance at a discussion on climate change."
	The hon. Lady does mention in the article, which was published on Friday, that Eric Forth had died on Wednesday, but it was mentioned in parenthesis. Many hon. Members would find that very insensitive. I have spoken to the hon. Lady this morning—she is on a Select Committee visit to the United States. Although she had conveyed a message to the newspaper to withdraw the article, or at least to put it in some context, what advice can you give to Members about the importance of ensuring that that which appears above our own names in print is our responsibility? Will you caution us about being insensitive and about the fact that if we fear that something that we have committed to print may be insensitive and offend Members—and, indeed, the wider public—we should ourselves take care to ensure that it does not appear in print?

Mr. Speaker: I can only say that hon. Members know that they have responsibility for their own words—whether oral or in writing—and they must take on that responsibility. It should not be for an editor to look after these matters; they are responsible for them. The matters that the hon. Gentleman mentions clearly took place outside the House and I have no control over them.
	I can only end by saying that last Thursday hon. Members on both sides of the House paid great tribute to Eric Forth. Any member of the public is entitled to read in  Hansard just how highly the House regarded Eric Forth, and I include myself in that.

Orders of the Day

Armed Forces Bill

As amended in the Select Committee, considered in Committee.

[Mrs Sylvia Heal  in the Chair]

Harry Cohen: On a point of order, Mrs. Heal. We have some very quirky practices in the House, one of which has brought about the collapse of amendments to the Bill in Committee. A number of hon. Members wanted to table amendments, but because the House rose very early at about 1.30 pm on Thursday those amendments were not tabled and could not be selected.
	I wanted to table amendments on the Wednesday, but they needed to be tidied up and put in the right place. I had constituency duties on the Thursday morning, and by 2 o'clock, when I said that they were ready to be tabled, the House was not sitting so they could not be tabled. They are therefore not eligible to be considered, despite the fact that they are important amendments. I am particularly aggrieved by that, although I do not blame the Clerks—it is because of the quirky nature of this muddle. My amendments would have been tabled as starred amendments, so they would not have been selected, but they would at least have appeared on the amendment paper. I had five amendments, and I would have very much appreciated their being recorded in the official record. One of them, for example, said:
	"Clause 50, page 22, line 7, at the end insert"—

Sylvia Heal: Order. I understand the point that the hon. Gentleman makes, but I must remind him that the Bill was reported from the Select Committee at the end of April. Although the business finished early last Thursday, I would have thought that from the end of April—I am not giving a precise date—until last week provided sufficient time for right hon. and hon. Members to table amendments to the Bill.

Harry Cohen: Further to that point of order, Mrs. Heal. The Bill was not timetabled. It is an incredibly complex Bill, with 378 detailed clauses and many aspects to it. I had to obtain quite a detailed briefing from the Library on several of those aspects. In those circumstances, it is reasonable to believe that even if such amendments are not taken because they are starred, they should appear somewhere on the official record. I want my amendments to be on the official record in some way because the issues that I attempted to raise are important. I ask you not to give me a negative answer, Mrs. Heal, but to find some arrangement whereby my amendments are on the official record, even if they cannot be taken. I wish to raise them as a point of order and mention them so that they are on the official record. Will you give me the opportunity to do that?

The First Deputy Chairman: I understand the hon. Gentleman's concern, but I am afraid that I cannot give him that permission. The Public Bill Office tabled all the amendments that were received in time. I understand the circumstances, but I regret to say that there is nothing that I can do at this stage to help him.

Harry Cohen: You have been given incorrect—

The First Deputy Chairman: Order.

Harry Cohen: rose—

The First Deputy Chairman: Order. May I help the hon. Gentleman?

Harry Cohen: rose—

The First Deputy Chairman: Order. If the hon. Gentleman will take his seat, I think that I will be able to help him. If he cares to take his amendments to the Public Bill Office, we will make sure that they are put in the Vote Office for him. That is the best that I can do to help him.

Harry Cohen: I appreciate that. Thank you, Mrs. Heal

Tom Watson: I beg to move,
	That the Bill be considered in the following order, namely, Clauses 1 to 53, Schedule 1, Clauses 54 to 113, Schedule 2, Clauses 114 to 163, Schedule 3, Clauses 164 to 168, Schedule 4, Clauses 169 to 180, Schedule 5, Clauses 181, Schedule 6, Clauses 182 to 205, Schedule 7, Clauses 206 to 271, Schedule 8, Clauses 272 to 275, Schedule 9, Clauses 276 and 277, Schedule 10, Clauses 278 to 319, Schedule 11, Clauses 320 to 347, Schedule 12, Clauses 348 and 349, Schedule 13, Clauses 350 to 354, Schedule 14, Clauses 355 to 363, Schedule 15, Clauses 364 to 371, Schedules 16 and 17, Clauses 372 to 378, new Clauses, new Schedules, any remaining proceedings on the Bill.
	The motion sets out the order of consideration for today's proceedings in Committee. It follows exactly the same order as was used in the Select Committee on the Bill. It was the Committee's view that, with a large and complex Bill arranged in a logical sequence, it should be debated in that sequence, with the schedules brought up with their relevant clauses. As Lewis Carroll said:
	"Begin at the beginning...and go on till you come to the end: then stop."
	 Question put and agreed to.
	 Clauses 1 to 7 ordered to stand part of the Bill.

Clause 8
	 — 
	Desertion

John McDonnell: I beg to move amendment No. 8, in page 5, line 14, leave out from 'property;' to the end of line 15.

The First Deputy Chairman: With this it will be convenient to discuss amendment No. 9, in page 5, line 18, leave out from 'offence' to 'must' in line 20.

John McDonnell: I absolutely sympathise with my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) about the process by which amendments to the Bill were garnered. It was exceptionally unfair to several hon. Members who were busy on that particular day, despite the earlier timetabling.
	There has been a natural tendency for those with military experience to engage in past debates on military subjects more thoroughly than others. At times, those of us without military experience have felt that our views have somehow not been valued as much as theirs. However, despite the fact that some of us have taken a separate view from that of large sections of the House in previous debates, especially on military action, we all come to such debates with empathy and respect for those who serve in the military.
	Let my put on the record my family experience. My father served in the Army in the second world war. One of my uncles served in the RAF and another served in the Navy. On my mother's side, my grandfather served in the first world war and my great-grandfather served in the first world war and the Boer war. We thus come to the debate with a shared experience over generations and a respect for those who serve in the military for what they do and the essential role that they play in securing the safety of this country. We also come to the debate following discussions with serving personnel and those who are no longer serving. Such people have had experiences in Northern Ireland, the Falklands, the Balkans and, more recently, Iraq.
	I tabled amendments Nos. 8 and 9—perhaps a bit more expeditiously than my hon. Friend the Member for Leyton and Wanstead, but with only hours to spare—because I wanted to encourage a debate about desertion. When the Bill was introduced, it was presented as a non-contentious tidying-up exercise that was largely to do with legalised drafting to consolidate existing laws. However, it was also argued that the Bill would give us the opportunity to update laws that applied to those serving in the military and civilians associated with military activity.
	Clause 8, however, does not update existing law. It translates almost exactly the existing threat of life imprisonment for those who refuse to fight—those who desert—from past law into new law. It also extends that threat to those who refuse to participate in the occupation of subjugated countries and territories. Clause 40 again translates existing sanctions into new law by threatening those who incite others to desert with life imprisonment.
	The threat of life imprisonment in such circumstances is little short of barbaric. My hon. Friend the Member for Thurrock (Andrew Mackinlay) has tabled new clauses 1 and 2, which relate to what happened during the first world war. At that time, we deprived people of their lives for desertion by shooting them at dawn. Through the Bill, we are maintaining the deprivation of life by threatening to imprison people for the rest of their lives if they refuse to engage in military activity or the occupation of a foreign country. I thought that we would have moved on from the last century and that we would have the opportunity to abolish that sanction by updating our legislation.
	I also thought that we would have learned more about why people desert from our experiences of the two world wars and, more recently, of the Balkans and Iraq. In many instances, people desert because of fear about the threat to their lives and safety and because of trauma. Many such people are in absolute panic. In particular, owing to the debate about the casualties of the first world war through the shot-at-dawn campaign, I thought that we were developing a more sympathetic understanding that we did not need to use such barbaric sanctions.
	There are others whose refusal to fight is based upon conscience. We have had that debate in this Chamber on a number of occasions when deciding whether to send our troops to war. We are able to exercise our right of conscience. I remember the debate about Iraq and our heavy discussions about the theory of just war and whether Iraq was a just war. I thought that we had extended that right of conscience to military personnel.
	I appreciate that there is a system under which people can claim to be conscientious objectors. From the evidence from the Peace Pledge Union and others that was provided to the Select Committee that considered the Bill, it is clear that that system is not regulated within statute. It is a procedure, but it is not within this legislation, which was meant to update and to consolidate the processes of law controlling issues around desertion. I thought that, eventually, it would control the processes for the exercise of conscience.
	While taking evidence, we discovered that military personnel were not adequately informed not only of their right to exercise their right of conscience, but of the processes themselves. The position was outlined in the Select Committee by the Peace Pledge Union. That brought forth a memorandum from the Ministry of Defence, which at least explained the process, even though it had not advertised it in any leaflets or in the practical advice given to serving personnel. The rejection of the process of an armed forces federation to assist those who wish to exercise their right undermines their ability to access the procedures themselves. I hope that later, in a debate on a new clause, we may accede to the request to strengthen the right of representation for serving military personnel.
	I do not believe that this part of the Bill is a tidying-up exercise. I believe that the Bill is really about the war in Iraq. We are aware that the number of absconders has trebled since the invasion of Iraq. There has been an increase in the number of soldiers questioning Government policy about that invasion, an increase in the number of soldiers questioning the morality and legality of the occupation and an increase in the number of serving personnel speaking out.

Harry Cohen: I am grateful to my hon. Friend for giving way and for his support for my point of order earlier, which came over somewhat awkwardly—my point of order, that is, not his support for me, which was very eloquent. Clause 8(3)(a) says that "relevant service" means:
	"actions or operations against an enemy".
	He said that the clause applied to Iraq. My understanding is that we have not declared anyone an enemy. I know that a war on terror has been announced, but can he cast some light on who is an enemy in these circumstances? It is said that there are insurgents and terrorists. We know that British soldiers have died. Why cannot the Committee be told who actually is the enemy? Why cannot it be legislated for in some way?

John McDonnell: That is a valid point. The lack of definition of an enemy has enticed the Government to include in clause 8(3) as a relevant service
	"military occupation of a foreign country or territory."
	Without definition of an enemy, service during an occupation of another country is sufficient for withdrawal from that service and refusal to participate in that action to qualify as desertion. I believe that legislation of that sort will fail. No increase in the severity of punishment will prevent servicemen and women from speaking out.
	Many have paid their respects—as I have, too—to serving personnel for the bravery that they show and their professionalism in carrying out their duties, but I also want to salute those who have had the courage and bravery to exercise their moral judgment, and those who have followed their conscience and said no to fighting. They have not supported the occupation and they have refused to serve. I pay tribute to Ben Griffin from the SAS, who said to us last week that he was not willing to support, in his professional life, the invasion of Iraq and the immoral and illegal war in Iraq. I also pay tribute to Flight Lieutenant Malcolm Kendall-Smith, a person of conscience who is in a military prison as a result of refusing to serve in Iraq. Their views should be respected. They, and others who come forward in future, should not be threatened with life imprisonment. History will be their judge, as was the case with the first world war. The people who opposed that barbarism were, in fact, sane and courageous. History will judge individuals who stood up and refused to fight in Iraq, or to support the occupation, to be heroes.

Adam Ingram: I am interested in my hon. Friend's argument. Would he apply the same logic to Kosovo, Sierra Leone and Afghanistan? Does he think that members of the armed forces should exercise their conscience at will, no matter what the country's determination, no matter that it is under a UN mandate, and no matter that assistance is being delivered for a great humanitarian cause? What is the logic of his position?

John McDonnell: Individual members of a voluntary, professional military service have the right as citizens to exercise their judgment in the same way as we do. They should not face the sanction of life imprisonment—that is what the Bill proposes—for exercising that judgment.

Tom Watson: May I clarify something for my hon. Friend? Refusal to take part is not desertion, but it may give rise to an offence of disobeying a lawful order, which carries a maximum sentence of 10 years.

John McDonnell: Desertion is defined in the Bill as absence without leave. We are threatening someone who refuses to serve or who goes missing, whether as a result of fear, trauma or conscience, with life imprisonment. As I said, people who stand firm on the right of conscience will be judged the real heroes, as they made a judgment about Iraq and, I believe, provide an example to us all in the exercise of conscience, no matter what the cost.

Julian Brazier: I did not intend to speak in this debate, so I shall be brief in my support of the Government's proposals.
	Parliament sets a maximum penalty, not a minimum. The hon. Member for Hayes and Harlington (John McDonnell) addressed hard cases—I am not sure whether or not I have his attention—but that is not relevant to the setting of a maximum penalty. If we set a minimum penalty, he could make his case, but the measure is required to cover all eventualities. The historical background that he gave illustrates that point. No one has greater admiration or affection for the hon. Member for Thurrock (Andrew Mackinlay) than I, but the campaign that he has waged on first world war executions overlooks many inconvenient facts. I was privileged to be briefed on the issue by a retired Air Force officer, who spent a year or two going through every one of the 260 folders that survive from the 300 original folders. He examined the background, and he established that there was a total of 3,000 cases: 90 per cent. of executions were refused on appeal. Among the small number of executions, there appear to be a few cases in which there was a genuine injustice. I shall cite an example of a case for which most hon. Members would accept that a sanction of some sort was appropriate. A professional solder who joined the Army five years before the first world war deserted—

Andrew MacKinlay: On a point of order, Mrs. Heal. I am showing uncharacteristic restraint, as the hon. Gentleman is talking about something which, I hope, we will discuss later. I would obviously want to respond, but his example is quite irrelevant, I submit, to clause 8.

The First Deputy Chairman: I was about to remind the hon. Member for Canterbury (Mr. Brazier) that the discussion of detail comes later in the day. Perhaps he could relate his comments to the amendment under discussion.

Julian Brazier: Indeed, Mrs Heal. I was giving the example of someone who deserted without seeing action at all, although he had been a professional soldier for five years.
	On the argument advanced by the hon. Member for Hayes and Harlington, a maximum penalty must cover all eventualities. The Minister asked him about all the other cases. The hon. Member for Hayes and Harlington replied that the provision dealt with desertion, but we are dealing with cases of desertion and of people refusing to participate—two separate circumstances for which different maximum penalties are set out in the Bill. Is the hon. Gentleman seriously suggesting that anybody who has opted to wear the Queen's uniform should not potentially face very grave charges if they refuse to go into action? In an action that the entire country strongly supports, even perhaps—God preserve us—another world war, is the hon. Gentleman seriously suggesting that someone who chose to put on a uniform, with all that that means, and then refuses to participate, should be able to say, "Christ, I might get shot at. I don't want to go," without facing potentially serious charges?
	Producing hard cases has no relevance whatever to maximum penalties. The hard cases can be argued one by one in the courts. That is what we have courts martial for. I urge the hon. Gentleman to think again. If we are trying to run armed forces of which we have good reason to be proud, and the hon. Gentleman has good reason to be proud of his forebears who served in them, we must have disciplinary penalties. On this measure, the Government are entirely right.

Kevan Jones: Having spent three months on the Bill—

Bob Russell: Four months.

Kevan Jones: Four months, I am reminded, and some of us were more assiduous than others— [Interruption.] My hon. Friend the Member for Hayes and Harlington (John McDonnell) says from a sedentary position that he would have deserted. In the present circumstances, the Government would have welcomed that.
	When I saw the amendments and a press release issued by my hon. Friend, I was worried that we had missed something in the Bill. I was concerned that the civil servants had got one over on us— [Interruption.] Someone says, "Surely not", but those who served on the Committee know that that it was a good process, both the Select Committee and the report. I had to do some research this morning to find out what the current position was, and I think that what is proposed is an improvement on the current position.
	As I understand it, the 1955 Act set out a two-tier system—punishment of up to two years for desertion and another sanction, life imprisonment, for more serious cases, defined as desertion from active service. The definition of active service referred to occupation of a foreign country, so the reference in the Bill is nothing new. That Act was superseded by the 1971 Bill, which removed the lower sanction because of the situation in Northern Ireland, since the definition of active service could not be applied to deployment in another part of the United Kingdom.
	Under the present system, the maximum sentence for desertion is up to life imprisonment. The Bill in its present form is an improvement because it reverts to the 1955 position, by introducing a two-tier system. There will be the possibility of imprisonment for up to two years, but the other sanction—rightly, in my opinion—is up to life imprisonment for the more serious offences.
	I know that many hon. Members are worried about the reference to
	"occupation of a foreign country".
	I understand my hon. Friend's position on Iraq. It is not one that I share, but I credit him with being consistent and forceful in his arguments for it. As I said, the reference to occupation of a foreign country was part of the original definition of active service. Therefore, I do not see any great change there, but I understand why there may be concerns. However, a reintroduction of the two-tier system is better than the previous position.

Harry Cohen: Does my hon. Friend agree that there is a difference between a legal occupation and an illegal occupation?

Kevan Jones: That is an argument that can be had around a specific campaign such as the one in Iraq. I am grateful to my hon. Friend, but he knows that we disagree on that. The important point is that if people have agreed to serve in Her Majesty's armed forces, there must be some sanction or control over their actions. My hon. Friend the Member for Hayes and Harlington referred to those who were shot at dawn during the first world war. I shall seek to catch your eye later, Mrs. Heal, to speak on that matter, about which I have great sympathies, but there is a great difference between a conscript, who has no choice over going to war, and those who take the conscious decision to join Her Majesty's armed forces. Without some kind of sanction, how would one operate in any circumstances? We cannot have armed forces who pick and choose when and where they serve.

John McDonnell: My hon. Friend served long and hard on the Committee so he knows the Bill inside out, poor man. The amendment would maintain the two-year sanction, but not that of life imprisonment, which appears inhumane and barbaric.

Kevan Jones: I disagree. The measure does not say the sentence for desertion will automatically be life imprisonment, but up to life imprisonment, so there is flexibility in sentencing. The idea has been sold that somehow if one deserts one will automatically get life imprisonment, and that is not the case.

Robert Flello: In conflict, if a platoon were reliant on an individual to hold a particular post and that individual decided to desert that post, putting at risk the lives of everyone in the platoon, would it not be important to have a severe consequence?

Kevan Jones: My hon. Friend's point goes to the kernel of the argument. In the armed forces the ultimate sanction must be there for the sake of military discipline in very difficult situations. As I have said, there is a great difference between conscripted armed forces and those who have volunteered and made a conscious decision to serve in the armed forces.
	I also agree with the point made by my hon. Friend the Member for Hayes and Harlington about the way in which our armed forces can make representations. I spoke on the armed forces federation when I moved new clause 23 in Committee, and if I have the opportunity I shall speak on that matter again today. An issue has been raised as a result of the situation in Iraq, not so much on this clause but on how our armed forces obtain redress for some of their grievances, not just those that arise from their service abroad, but here.
	I shall resist the amendment because the measure is an advance, rather than turning the clock back, as the amendment suggests.

Nick Harvey: I congratulate the hon. Member for Hayes and Harlington (John McDonnell) on the measured way in which he has moved the amendments. I have some sympathy with where he is coming from, but I find myself unable to support them. They do not have quite the effect that the hon. Gentleman maintains, and it is just as well that they do not. I sympathise with him in that I, like him, opposed the Iraq war, and because in almost any circumstances that I can imagine the penalty of life imprisonment would be way over the top. Like him, I take the view that the arrangements for armed servicemen to claim conscientious objection are not working in practice, whatever they may say in theory, and like him I think that other shortcomings of the Bill result in a failure to address some of the grievances and points raised by people to whom both he and I will have spoken.
	The hon. Member for Hayes and Harlington is mistaken in two regards. First, as other hon. Members have said, the existing legislation already includes the potential penalty of life imprisonment for anyone who deserts while on active service overseas. Although subsection (3)(c) does not add anything to the body of law, the hon. Gentleman is mistaken in suggesting that it somehow constitutes a toughening of the law, because servicemen who desert while on active service overseas can already go to a general court martial, where they face possible life imprisonment. Secondly, given that clause 163 leaves in place the maximum potential penalty, the amendment will not achieve the objective that the hon. Gentleman explained at the outset.

John McDonnell: The Bill was presented as allowing the updating of service law, which gives us the opportunity to rid ourselves of some of the punitive punishments in existing law, one of which is life imprisonment. I would welcome the hon. Gentleman's views on clause 40, which also introduces life imprisonment for incitement based on actions undertaken under clause 8.

Nick Harvey: The hon. Gentleman is right on that particular issue. It is just as well that the amendment will not have the intended effects. If British servicemen were to carry out perfectly legal actions overseas, such as actions agreed by United Nations resolution, and were to conduct themselves entirely in accordance with international humanitarian law, it would be a serious matter if someone were to up sticks and leave, because, as the hon. Member for Stoke-on-Trent, South (Mr. Flello) has said, it would endanger others in their units. That should not be viewed as a small offence and I do not think that a maximum two-year sentence would be adequate in such circumstances.

Angus MacNeil: Does the hon. Gentleman agree that the Bill benchmarks life imprisonment in statute?

Nick Harvey: No; the Bill does not change the position. Existing statute allows a sentence of up to life imprisonment. I understand the point made by the hon. Member for Hayes and Harlington—that the Bill might have been an opportunity to modernise the legislation completely—but I do not accept the argument that the Bill makes the situation worse. Although some have pointed out that including subsection (3)(c), which concerns an invasion of foreign territory, on the face of the Bill is profound, I do not believe that it will change the existing law. Although I sympathise with some of the points made by the hon. Member for Hayes and Harlington, the amendments will not have the effect that he seeks, and I think that it is as well that they do not, because it would not be desirable to reduce that serious offence to an offence that carries a maximum two-year sentence.

Harry Cohen: That was a very interesting contribution by the hon. Member for North Devon (Nick Harvey), and a typically Liberal one—it was a fence-sitting exercise.

Nick Harvey: indicated dissent.

Harry Cohen: Well, I will give him an example of where he is fence-sitting. Clause 8 provides for a life sentence for the offence of desertion. Only every now and then does a Bill come before us to amend the Armed Forces Acts. He might say that this is no different from what we had before, or that it is slightly but not substantively different, but either he supports the provision of life imprisonment or he does not. He gave the impression that he does not, but then made it clear, by not supporting the amendment, that he does.

Nick Harvey: We are being presented with two options—one is a maximum of two years, and the other is a maximum of life imprisonment. I have agreed as a general point of principle that life imprisonment would be over the top in any circumstances that I can envisage, but the only alternative is a maximum of two years. I have clearly expressed the view that that would not be adequate as a penalty for people committing a very serious offence by, having been deployed in perfectly legitimate circumstances, leaving their comrades in an unsustainable position. I did not sit on the fence—I came to a firm view.

Harry Cohen: The clause provides for life, and there is an amendment that would delete that. The hon. Gentleman either supports that or he does not. If not, these are weasel words, quite frankly. I heard what he said in his speech, but it is not the same as his actions.
	My hon. Friend the Member for Hayes and Harlington (John McDonnell) emphasised that under clause 8, life is a possibility, and I support him in wanting to get rid of that.

Angus MacNeil: Clause 8 does not cover only desertion in the heat of battle, because subsection (2) states:
	"For the purposes of this Act a person deserts if he is absent without leave and...he intends to avoid any particular service or kind of service".
	That could lead to people who might have a real conscientious objection to a particular action, or a war such as Iraq, facing life in prison.

Harry Cohen: That is right. My hon. Friend the Member for Hayes and Harlington is seeking to get rid of that hugely excessive sentence, and that is why his amendment is worthy of support.
	I welcome my hon. Friend the Under-Secretary to his post and wish him great success in it. I am sure that I will be more supportive of him on other occasions. However, I was a little alarmed when he intervened on my hon. Friend the Member for Hayes and Harlington to refer to absence without leave, the sentence for which, under clause 9, must not exceed two years. Indeed, he could have referred to disobedience to lawful commands, for which, under clause 12, the sentence is not to exceed 10 years. There is a bit of cherry-picking going on whereby the military authorities, or perhaps the Ministry of Defence, can pick and choose which sentence they want to apply to those who use the illegality of the war in Iraq as their defence. In the end, they could still use clause 8, which provides for a sentence of up to life.

Tom Watson: I thank my hon. Friend for making my first day at the office so welcoming. I should remind him that this will be decided by a legal process, not by the Ministry of Defence or Ministers. The Bill sets out the parameters. It is not a mandatory life sentence, but a maximum life sentence, and the sentence meted out will be in relation to the crime committed.

Harry Cohen: I acknowledge that this will not be for the Ministry of Defence; I would not expect Ministers to make such decisions. However, it still leaves the military authorities with the power to cherry-pick. If they do not like the person concerned, they can go for clause 8, which provides for up to life.

Tom Watson: Just for clarification, these decisions will not be made by the military, but by the independent legal authorities.

Harry Cohen: That is amazing because, if they were independent legal authorities, we would not have a court martial system, and civil and criminal law would apply across the board. Military legal authorities can cherry-pick if they wish.
	Such Bills come up for review by the House only rarely. We should therefore take the opportunity now to get rid of the excessive sentence that is applied and which can be applied to those who have serious conscientious objections, for example, to the war in Iraq.

Paul Keetch: The hon. Gentleman and I opposed the war. I spoke in almost all the debates about it and was contacted by many members of Her Majesty's armed forces who had serious concerns about the action that the Government proposed to take. I respected those views, which they did not reach in the height of battle. They volunteered for service under the Crown and, whatever we think about the war, it took place, and the majority of those who had serious concerns made them known before they were deployed in theatre. They did not desert their posts at the height of battle. My advice to people who approached me was that members of the armed forces who opposed the war should make their opposition known before they were deployed and went to the front, that they should certainly not desert their mates while they were there and that, if they did, I believed that serious consequences should follow.

Harry Cohen: I accept that, but many people are effectively "deserting" when they are in this country and do not wish to go on another tour of duty in Iraq because of the unfolding circumstances, in which they have witnessed some of the atrocities, which have certainly been against the law, and seen the Attorney-General's statements to the Cabinet, which were revealed bit by bit. It is not unreasonable for people, such as Flight Lieutenant Malcolm Kendall-Smith, who went on an earlier tour, to say, "I've looked at what happened since and I don't support it."

Kevan Jones: In a nightmare scenario for the MOD, in which my hon. Friend the Member for Leyton and Wanstead is appointed a Minister, what would he do in circumstances whereby Parliament had decided that our troops should serve abroad on a humanitarian mission, or, for example, in Afghanistan, where the occupation is universally sanctioned, and someone said that they were not prepared to fight or go on the mission? Does he suggest that members of the armed forces should pick and choose when they serve?

Harry Cohen: First, I am grateful not to be a Minister in the MOD. I never had any expectation of being one. However, I have always argued from the Back Benches that whatever our forces do should comply with the law of this country and international law, which should not be downgraded.
	A sentence of up to life is excessive and should not be on the statute book. The Library has provided a host of alternative sentences, even to detention.They include dismissal, forfeiture of seniority, reduction in rank, a fine, a severe reprimand, stoppages of pay and minor punishments, including community punishments, which would be appropriate for conscientious objectors. We allow community activity and that would be appropriate for someone who was akin to a conscientious objector. The Library paper says of community punishments that
	"a sentence of this kind may not be passed unless the court considers that the offence is serious enough to warrant it".
	A serious offence therefore leads to such a punishment. That makes it clear that a sentence of up to life is excessive.

Mike Hancock: I have a great deal of sympathy with many of the issues that the hon. Gentleman takes up, but he has lost the plot on this one in relation to the crime that has been committed. Any service person leaving their post in this country in peace time would be dealt with in a particular way, but the example has been given of someone deserting in the heat of battle resulting in the death or endangerment of his comrades. Surely that must warrant the most severe sentence. Will the hon. Gentleman get off the fence and tell us what he thinks the sentence should be for that kind of action?

Harry Cohen: I hear what the hon. Gentleman is saying, and my colleagues have just whispered to me that such action is covered elsewhere in the Bill, under the misconduct clauses. We are talking here about the clause that is most applicable to people who consider that the war in Iraq was wrong and illegal. We are not talking about the circumstances that the hon. Gentleman has described in relation to those people. People leaving in the heat of battle are dealt with elsewhere in the Bill. So why does this provision need to include a life sentence?

Robert Flello: The recent case of the flight lieutenant has been used as an example of why a life sentence is inappropriate. However, my understanding is that that case was brought not for desertion but for failing to obey a lawful order, so I am surprised that that example is being cited time and again in support of the argument about desertion. I should like to repeat the question that the hon. Member for Portsmouth, South (Mr. Hancock) has just asked; what would my hon. Friend do if the lives of a company of 70 or 80 men were put at risk, or possibly lost, because one person who had a crucial role in the company decided to desert?

Harry Cohen: Those circumstances are dealt with elsewhere in the Bill—[Hon. Members: "No, they are not."] Yes, they are. They are dealt with under the misconduct provisions. We do not need the provisions in clause 8 to go to this extent.

Mike Hancock: Will the hon. Gentleman explain to the Committee where in the Bill this issue is dealt with? I have read the Bill, and I cannot find it.

Harry Cohen: My understanding is that it is in clause 12, and presumably clause 13 as well.

Alan Simpson: And in clause 2(1)(b).

Harry Cohen: Indeed. That clause deals with misconduct on operations. We do not need the provision in clause 8 as well, as it will allow the legal authorities to cherry-pick which sentence to apply. They will choose the harshest sentence if they want to.
	Clause 8(3) deals with the definitions of "relevant service", and includes
	"actions or operations against an enemy".
	But it is no longer clear-cut who the enemy is, as we no longer officially declare war.

Kevan Jones: I want to help my hon. Friend in regard to clause 2, which deals with misconduct. He says that subsection (1)(b) is relevant to his argument, but subsection (7) states:
	"A person guilty of an offence under this section is liable to any punishment mentioned in the Table in section 163, and any sentence of imprisonment imposed in respect of the offence may be for life."
	The first punishment listed in the table in clause 163 is "imprisonment".

Harry Cohen: That deals with a mutiny, where people are getting together. I am talking about people exercising their individual conscience, which is very different.
	Clause 8(3) defines "relevant service" as, among other things,
	"actions or operations against an enemy",
	but we no longer define specifically who an enemy is.

Tom Watson: I thank my hon. Friend for letting me in. We do define what an enemy is. Clause 367 states that anyone
	"engaged in armed operations against any of Her Majesty's forces"
	is defined as an enemy.

Harry Cohen: Let me now— [ Interruption.] I have two issues running at the same time here. I apologise to the Minister. I will come back to the point that he has made in a moment. One of my colleagues has just drawn to my attention paragraph 62 of the explanatory notes to the Bill, which states:
	"The maximum sentence for desertion is generally two years' imprisonment. But the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service, of the types described in the second bullet above, or if his intention is to avoid such service."
	However, a stricter distinction is needed in relation to those who, as the hon. Member for Portsmouth, South (Mr. Hancock) said, put lives at risk in the heat of battle. That issue must be distinguished from that of those who say that the Iraq war is illegal under international law and who exercise their conscience and personal responsibility in that regard. The fact that we are having this argument shows the muddled way in which the clauses have been devised and worded and the lack of proper consideration of them; otherwise, we would not be having this dispute about what the provision means. The Government should therefore accept the amendment, so that the life sentence for the second category to which I referred is withdrawn.

Jeremy Corbyn: I was interested in my hon. Friend's point about legality. If, for example, someone had deserted in the run-up to the invasion of Iraq, when, clearly, there was no UN approval, no direct threat to this country and, therefore, no legal state of war, would it be correct to discipline that person?

Harry Cohen: In a sense, the point is made. In an earlier intervention, I made the point that international law is as important as law, and that should apply. This Government and Parliament have put a lot of personal responsibility on people to comply with the law. If they do not, the punishments are increased. Therefore, they must examine the law and international law as it applies in military terms. The punishment should therefore reflect that personal responsibility. As has been said, a life sentence is inappropriate.
	As to who an enemy is, the Minister's intervention, in which he said that the situation is as it always has been, just will not do. In the second world war, we had a clearly defined enemy, which was referred to as an enemy. Now, even al-Qaeda is not referred to as an enemy in legislation or in what has been laid out in Parliament. Things have therefore changed considerably. If we are to apply such emphasis and impose such strict sentences on the basis of having an enemy, let us at least declare a war in the traditional way, so that we know who the enemy is, and so that people are clear about that. Otherwise, the enemy can change from day to day. In Iraq, is the enemy al-Qaeda, or is it nationalists? Who exactly is the enemy in Iraq?

Tom Watson: If my hon. Friend does not want to read clause 367, which contains the tight definition of an enemy, let us make it more simple; it is the people who are shooting at our forces.

Chris Bryant: Except when they are the Americans.

Harry Cohen: As my hon. Friend says from a sedentary position, that could easily be the Americans in many cases. I am happy if the Minister wants to include in legislation the definition that anybody who shoots at our forces is the enemy. That is not in the legislation at the moment. If we are going to go to war and put such burdens on people, we should be explicit about who the enemy is in any given circumstances.
	Subsection (3)(b) refers to
	"operations outside the British Islands for the protection of life or property".
	Does that cover Iraqi lives and property? Are they covered, or are they usefully ignored? Are we talking only about United Kingdom lives and property, or not? I am waiting for the Minister to intervene on that. After all, the Government claim that we are there on a legal basis. They claim that we are there according to the will of the United Nations, protecting Iraqi lives and property, although the property has been ripped off to an enormous degree and more than 100,000 lives have been lost. It is interesting that the Minister remains silent on that. That in itself could cause people to ask, as a defence, what lives or property they were actually defending.
	The third paragraph, which was referred to by my hon. Friend the Member for Hayes and Harlington, is the most objectionable in my view. It refers to
	"military occupation of a foreign country or territory".
	It is important to establish whether that occupation is legal or illegal. If it is legal and properly authorised, I think that courts martial and sentences should follow; if it is illegal, that represents a solid defence, and that people who advance that defence should not be punished in the excessive way proposed by the Bill.

Si�n Simon: Is not the point that my hon. Friend keeps making entirely oxymoronic? Is it not obvious that it will not be in the legislation? Can my hon. Friend not understand that it is not possible for this country's armed forces to launch or be involved in an illegal war? It has never happened, it will never happen, and it cannot happen. Only in the minds of mad conspiracy theorists does this country launch illegal wars. It is not possible, and that is why it is not accounted for in the Bill.

Harry Cohen: That was a very eloquent rant, but Kofi Annan said that the war was illegal, as have many other international jurists. Even the armed forces had to seek information on whether the war was legal. Even they were not sure. Then we had the weasel words

The First Deputy Chairman: Order. I think that we are going wide of the amendments.

Harry Cohen: I shall go straight back to the point, Mrs. Heal. I was saying that I agreed with my hon. Friend the Member for Hayes and Harlington. If military occupation of a foreign country or territory in such circumstances is illegal under international law, we are enshrining illegality in our law, and that is something that we should never do.
	Let me make one more point, about the Nuremberg trials. When people said as a defence that they had been acting under orders, although their actions had been deemed illegal under international law, we said that that was not a defence. We said that they had to exercise personal responsibility. Now people are exercising personal responsibility. People like Flight Lieutenant Malcolm Kendall-Smith have looked at all the information that has dribbled out. He said that the war was illegal as far as he could see, that Kofi Annan had said it was illegal and that personal responsibility dictated that he should not take part in it.

Paul Keetch: I think that the hon. Gentleman should make a distinction between the legality or otherwise of the action, conflict or war and the current occupation. There has been discussion about whether the war was legal. I take a view on that; I opposed the war, although the House voted for it. The occupation, however, is sanctioned by the United Nations Security Council, and is at the invitation of the democratically elected Government of the country, whatever we may think about that. Whatever the events of a couple of years ago, surely the hon. Gentleman accepts that the presence of British troops in Iraq now is legal.

Harry Cohen: There are a number of very serious points

The First Deputy Chairman: Order. We are now going outside the scope of the amendments. Once again, I ask hon. Members to address their remarks to the amendment under discussion.

Harry Cohen: Let me answer the hon. Gentleman's point briefly. As has been said, a good many illegal acts are going on

The First Deputy Chairman: Order. I have already ruled that that is out of order. Will the hon. Gentleman please address his remarks to the amendment under discussion?

Harry Cohen: Subsection 3(c) has the potential to enshrine an illegal occupation. People should exercise, and have the right to exercise, their personal responsibility. The punishments that we include in Acts of Parliament should reflect their right to do so; they should not be excessively harsh. The punishment of imprisonment up to life imprisonment, is exceptionally harsh and should be removed from the Bill. I urge the Liberals and everybody else to come off the fence and oppose it.

Patrick Mercer: It is a great pleasure to follow the hon. Member for Leyton and Wanstead (Harry Cohen); we are used to hearing his lengthy speeches. I salute the modesty with which the hon. Member for Hayes and Harlington (John McDonnell) spoke and the due deference that he paid to the members of his family who have served in the armed forces. He approaches the amendment with a great deal of principle and thought. However, I think that I speak as the only person in here who has commanded a battalion, faced the prospect of operations, disciplined soldiers and encouraged them to go on operations and, indeed, to face the enemy.
	I do not wish to come the barrack-room lawyer, but there is a degree of confusion about the points that we are addressing. Desertion is an extremely serious charge, and if you do not mind, Mrs. Heal, I shall address most of my comments to my personal experience in the Army, but they are equally applicable to the Navy, the Royal Air Force and the Royal Marines. As a lieutenant-colonel commanding a battalion of infantry, it was my job to deal with soldiers under the Army Act 1955. I had to deal with the charge of desertion, under the auspices of the 1955 Act, once in my two and a half years commanding the largest battalion in the British Army, and twice on operations. I had to deal with absence daily.
	Some of the soldiers serving in Tidworth, where I had 950 soldiers mainly drawnlucky devilsfrom the counties of Nottinghamshire and Derbyshire, would frequently go abo, as the vernacular has it. In other words, they would go absent. They would exercise their personal freedom and choice, and, by golly, they paid for it. They were charged, if necessary, under the 1955 Act, and they were dealt with under various sections, but usually section 69. For periods of absence, they were dealt with by means of anything from a serious telling off, to a fine, to a period of imprisonment not exceeding 14 days. Such a period of imprisonment was the only one that I could regularly impose.
	From time to time, soldiers would absent themselvesgo absentand go, usually, to the large conurbations. I, as a furious commanding officer with a furious adjutant, would say, Charge this man with desertion. The advice that we received was, Absolutely not. Do you realise what desertion means? Having had 20-odd years experience as an infantry officer, I knew precisely what it meant. The guideline was that a soldier had to have been absent for more than 112 days and to have destroyed his identity card. That was the rule of thumb that we used before that soldier would appear in front of me to be remanded for trial by court martial. It was not a case in which a humble lieutenant-colonel could have become involved. The charge of desertion was extremely serious, and very serious penalties went with it.
	I say to the hon. Member for Hayes and Harlington that unless one has served in a battalion, or on a warship or an air station, one does not understand the problem that officers face in trying to deal with soldiers, airmen or sailors daily. They are a rumbustious and difficult lot. They decide from time to time that they are going to exercise their personal freedom and drink too much, fight, go absent and so on. However, in my experience, things change enormously when that battalion is warned for operations.
	Soldiers will absent themselves before a battalion goes on operations. In my experience, not many absent themselves for reasons of cowardice. Many absent themselvesI continue to use that phrase, rather than desertbecause they cannot get their heads round the difficulty of being abroad for six months, the potential dangers or domestic problems. Only once on operations did I have a soldier who absented himself in the face of the enemy, and he was not charged with desertion.
	Flight Lieutenant Kendall-Smith was not charged with desertion: he was charged, I believe, with being absent, or with a similar charge within those parameters. He did not desert. Trooper Griffin behaved with much courage and probity. He had reached the rank of corporal in his parent regiment and then gone through the selection process for the Special Air Service

Angus MacNeil: I just wish to point out that under clause 8(4), anyone who intended to avoid servicewhen on relevant service or under orders for such servicewould be liable to be sentenced to life in prison. That would apply to Mr. Kendall-Smith.

Patrick Mercer: But the point that I have been trying to make concerns the circumstances in which someone should be charged with desertion. In any case, he is not a Mr., but a flight lieutenant.
	Trooper Griffin behaved with great courage, despite the fact that he was being paid a great deal more money every day than others of his rank and that he was in arguably the most prestigious armed organisation in the world. None the less, he had the courage to approach his commanding officer and say, Enough is enough. I had similar instances, and I like to think that I dealt with them with fairness, kindness and compassion. I like to think that those are the watchwords of the commanders of our armed forces and that they deal not just with their own men, but with the Queen's enemies using the same rule of thumb.
	Let us not talk about desertion, but let us say that a trained sustained-fire machine gunner, who carries the maximum firepower of his platoon, decides to absent himselfif he decides that he will not face the enemy, but would rather let down his matesand that turns into desertion. I fear that we need to have the power to charge that man with desertion. The sentence in clause 8 is not a minimum sentence, but a maximum sentence. It has not been applied readily over the past several years. The plain fact is that if that manit is, let us face it, likely to be a mandeserts from his unit, the punishment he faces from the men whom he let down will be administered in the back streets of Nottingham or Mansfield and military law probably needs to be in place to protect him from those whom he has let down.
	We need to have a penalty for desertion. The Bill would make military law stronger, but the amendments would do nothing to help the soldiers, sailors and airmen, and the officers who have to discipline them. In fact, the amendments would undermine discipline. I understand and respect the political points that have been made by Labour Members, but they are not applicable in this case. We run the risk of confusing an extremely important issue.

Chris Bryant: It is a great honour to follow the hon. Member for Newark (Patrick Mercer). I am sure that all hon. Members agree that he made a particularly fine contribution to the debate. I disagree with him on only one point. I know that he brings a particular expertise to the debate, but one does not have to have been a serving officer to understand how important the concept of desertion is for discipline in the armed forces and for making it clear to every serviceman exactly what they have signed up to.
	I also pay tribute to my hon. Friends the Members for Hayes and Harlington (John McDonnell) and for Leyton and Wanstead (Harry Cohen), although I am about to disagree with them. Both put their arguments with eloquence, but my hon. Friend the Member for Leyton and Wanstead did not seem to understand that the concept of enemy is quite well defined. Clause 367, on page 185, makes it clear that an enemy is
	all persons engaged in armed operations against any of Her Majesty's forces or against any force co-operating with any of Her Majesty's forces...all pirates; and...all armed mutineers, armed rebels and armed rioters.
	That is clearer than in previous statutes so my hon. Friend may want to reconsider that part of his argument.
	I wholly disagree with amendment No. 8, which was proposed by my hon. Friend the Member for Hayes and Harlington. Deletion of paragraph (c) of subsection (3) would have meant that during the occupation of Germany and Italy at the end of the second world war somebody could have deserted with impunity. My hon. Friend may respond that they would be covered by the provision in paragraph (a)
	actions or operations against an enemy.
	In that case, what about people serving in Bosnia with UNFORthe UN force? Over the last 10 years, our forces have operated under different operational commands at various times; none the lesscertainly in the view of some peoplethey are in
	military occupation of a foreign country or territory.
	I believe that they are doing important work, although in the near future we may want to reconsider the number of troops serving in the region, as normalisation steadily takes place in Bosnia and Herzegovina, and, in the fullness of time, in Kosovo.
	My hon. Friend's amendment would wholly undermine many of our existing operations around the world and those in which we might choose to engage in future. If the Committee chose either to pass the amendment, which is unlikely given the contributions that have been made, or if a large number of Members were to support it in a Division, it would send a message to our armed forces not of ethical suretyas I am sure my hon. Friend intendsbut of ethical chaos. I hope, therefore, that no Members will support it in the Division Lobby.

Kelvin Hopkins: Why has my hon. Friend not mentioned paragraph (b) of subsection (3)
	operations outside the British Islands for the protection of life or property
	which seems to cover the point he makes?

Chris Bryant: I do not know whether my hon. Friend has visited our forces in Bosnia, but if he did so, he would see that it would be hard to argue that that was not what they were doing. I do not want the Bill to be so amended that our armed forces are constantly unsure which provisions applyto be wondering Does this count? Is this ethically right or wrong? My experience of the armed forces is limitedit is nowhere near that of the hon. Member for Newarkbut through the armed forces parliamentary scheme I have met countless soldiers of varying ranks with extremely well-developed consciences. In fact, they probably need a more keenly developed conscience about military operations than they ever did in the past, but that need not undermine discipline. An essential part of the training of a modern soldier is being able to make ethical decisions.

Jeremy Corbyn: Does my hon. Friend accept that there is a huge debate, especially among military families who have lost loved ones in Iraq, about not just the legality of the invasion of Iraq but the justice of the operation in the first place? The Committee needs to recognise that that debate is new and serious in our armed forces.

Chris Bryant: I am absolutely sure that my hon. Friend is right in that, but the Bill is not the place to have that debate. This clause on desertion is not about the war in Iraq . [ Interruption. ] It is not. I know that my hon. Friend the Member for Hayes and Harlington and his colleagues would like to make it about that, but I honestly do not think that it is, for the very important reason that desertion is not just about the individual soldier or officer; it is about the collective; it is about responsibility one to anotheragain, an essential part of the training of a soldier or an officerand it is vital that we do not send out a message that completely undermines that concept.
	My experience is that members of the armed forces today have an extremely developed sense of conscience and that they are encouraged to develop that sense of conscience, but it does not lead in just one direction. Conscience can lead, and I believe in the vast majority of cases has led, people to join the Army and to say, Yes, here's a series of operations that I want to contribute to on behalf of my country, but also for the greater good. Whether we are talking about Bosnia, Afghanistan or Sierra Leone, there is a whole series of different interventions where people are going not because of some economic conscript situation that might apply in other parts of the worldthey are not conscripts in any sensebut because of a sense of conscience and a desire to make their contributions to the world. So it feels as though amendment No. 8 is rather old-fashioned; either it is trying to fight the first world war again and deal with how people were treated when they deserted then, or it is trying to fight a war about a debate that was held in the Chamber some time ago.
	The final reason why I wholeheartedly oppose the amendment is quite simply that I believe that it would undermine the House. It effectively says that, in some circumstances, a soldier or an officer or a member of the other armed forces could desert, despite the fact that this country, through the Houseits elected representativeshad decided that the war was legitimate and legal, and I do not think that we should go down that route.

Angus MacNeil: The Bill benchmarks draconian penalties for going absent without leave, which could occur in accordance with conscience, owing to the orders that the soldier was given. We must remember that orders vary according to the actions that Governments might want to take as a result of their international alliances. The proposed penalty is the maximum that has been benchmarked in our society. Indeed, if we went back to the days of world war one, we would have the ultimate penalty. Subsection 2(b) refers to someone who
	intends to avoid any particular service or kind of service
	that is the nub of itbecause he or she does not agree with the Government of the day. If we go back perhaps to 1930s Germany, a reasonable law could be passed by a reasonable Governmentbut, years later, we might not have a reasonable Government, and we would still have on the statute book a law that criminalises an awful lot of people.
	It is argued by some soldiers that they are entering into forms of bonded labour for a period of years. They volunteer before action; surely, they have the right to volunteer after action and not in any way to be subject to life in prison. We have the concept of just war, and importantly, we have the Nuremberg principles of the 1950s, which placed a responsibility on each person engaged in a war to assess for themselves exactly the orders that they receive.

Julian Lewis: This is the second time that the Nuremberg law has come up, and the hon. Gentleman ought to bear in mind the difference between waging an illegal war and doing illegal acts in the course of fighting a war. I do not think that anyone at Nuremberg suggested that any individual German soldier, sailor or airman was guilty of waging an illegal war, although many of them may have been guilty of war crimes in the context of that war, irrespective of whether or not it was legal.

Angus MacNeil: It is not for me to speak about the legality of Adolf Hitler's war, but it is certainly for me to stand up for soldiers. I have spoken anecdotally to several forces personnel, and it would seem that few of them know much about the rights of conscientious objection. The Bill will set as a benchmark, for going absent without leave, for viewing war as unjust or even for changing one's mind, the penalty of life in prison. As the hon. Member for Hayes and Harlington (John McDonnell) pointed out, desertion has trebled since the Iraq war. The USA has about 6,000 people going AWOL.

Kevan Jones: I am rather confused. Does the hon. Gentleman agree that there is a big difference between people who are forced to go to war as part of a conscription army and people who have taken it upon themselves to make a conscious decision to join Her Majesty's armed forces? Those are two very different situations and it is a mistake to link them.

Angus MacNeil: We heard earlier the remarkable assertion that it would be impossible for this country ever to engage in an illegal war. It would be possible for this country to engage in an illegal war and, given that that is the case, it is incumbent on individual service personnel to look at exactly what they are involved in. Illegal actions stem from illegal wars.

Kevan Jones: I will put the same question to the hon. Gentleman as I put to my hon. Friend the Member for Leyton and Wanstead (Harry Cohen) earlier. If we were in an unusual situation and the hon. Gentleman became the Defence Minister of either Scotland or the UK, what would he do if this Parliament, or any other Parliament in which he was a representative at that time, decided to take military action? Is he seriously suggesting that individual officers and men would be able to opt out of that democratic decision?

Angus MacNeil: If I were to become a Defence Minister, it would not be in the UK. My imperialist ambitions are very smallin fact, they are non-existent. Scotland might be a possibility.

Chris Bryant: Stornoway.

Angus MacNeil: It could be.  [ Interruption. ] Or Rockall. Labour gave that away in one of their first actions on the grounds that it had been plundered by Russian trawlers. Will the hon. Member for North Durham (Mr. Jones) repeat the question?

Kevan Jones: I am sorry. It obviously made a great impression on the hon. Gentleman. I was asking what would happen in the unlikely event of his becoming the Defence Minister for Scotland or anywhere else that would be sad enough to appoint him. If the body that he was party towhether it was the Scottish Parliament or any other bodytook a democratic decision to invade somewhere or wage a legal war, is he seriously suggesting that individual officers and men, who had not been conscripted but had volunteered to join that nation's armed forces, could have a veto and could pick and choose which military action they joined? Would that not cut across the democratic decision that had been taken?

Angus MacNeil: I am not saying that there would not be a penalty, but I am saying that there would be no ultimate penalty of life imprisonment. Two years would be quite adequate for somebody who is arguably following their conscience. I pay tribute to Malcolm Kendall-Smith, who is a particular source of admiration to me.

Robert Flello: As part of the armed forces parliamentary scheme, I recently had the opportunity to take part in a dawn attack exercise on Salisbury plain. We were in the back of a Saxon armoured personnel carrier at four o'clock in the morningalbeit on an exerciseand we were reliant on two guys, one on either side of the vehicle, each with a light anti-tank weapon. In a war environment, I would like to know that those guys were there with their light anti-tank weapons defending the vehicle, rather than thinking that they may decide, according to their consciences, at four o'clock in the morning, that it was all a bad idea. What is the hon. Gentleman's view on a squaddieif I may use that wordlying there with a light anti-tank weapon, thinking to himself, Two years isn't so bad. Let's slope off home and not lie here at four o'clock in the morning in the cold?

Angus MacNeil: The Bill does not say what people hope it says. It refers to life imprisonment for avoiding a service. It does not refer to being on active service. We are not talking about desertion in the heat of battle, but a conscious thought before battle.

Sarah McCarthy-Fry: The hon. Gentleman said that the Bill does not refer to active operations, but subsection (3) states:
	In this section 'relevant service' means
	(a) actions or operations against an enemy.

Angus MacNeil: And subsection (2) states:
	a person deserts if ... he intends to avoid any particular service or kind of service.
	Perhaps we are dealing with a Bill that is something of a mishmash.

Kevan Jones: Will the hon. Gentleman give way?

Angus MacNeil: No, I am going to press on.
	While we have a system that imposes a maximum penalty of two years for taking action, in the cold light of day, that results in the besmirching of Parliament by selling peerages, we should not allow, in any way, shape or form, servicemen to be threatened with life imprisonment if they follow the 1950 Nuremburg principles and their conscience, and question orders. Clause 8(5)(a) would allow a sentence of life on that very point, but such a benchmark should not be put in statute.

Si�n Simon: I welcome the Under-Secretary of State for Defence, my hon. Friend the Member for West Bromwich, East (Mr. Watson), to the Front Bench. He has been an asset to the far end of the Treasury Bench for a long time and is now an adornment on the other end.
	I was not in the Committee to hear the speech by my hon. Friend the Member for Hayes and Harlington (John McDonnell). However, given his experience and the tributes of the hon. Member for Newark (Patrick Mercer) and my hon. Friend the Member for Rhondda (Chris Bryant), who is no longer in the Chamber, but whose judgment on such matters is impeccable, I am sure that it was a considered and impressive contribution.
	I heard the speech by my hon. Friend the Member for Leyton and Wanstead (Harry Cohen). Impressive though his contribution also was, he used several phrases about the Government and the Bill that seemed to apply more to his speech than to the other side of the argument. He described the measure as muddled and talked a lot about cherry-picking. He repeatedly asked, Who is the enemy? It struck me that that was an apposite question.
	It is a shame that although the supporters of the amendments had the kernel of a reasonable point, they have failed to make it. It was a fair point that, perhaps, the sentence of life imprisonment is a bit draconian for a new Bill for modern armed services. The Committee could have had a reasonable discussion about that point. However, unfortunately, amendment No. 9 does not say, Life imprisonment is a bit draconian. Let's have a reasonable discussion about what would be a more appropriate and modern sentence for desertionwhich, as the hon. Member for Newark eloquently and movingly explained, is a serious offence. The amendment would reduce the sentence to two years, although that is the same sentence that applies for going absent without leave, which is a completely different offence that is treated with a different kind of seriousness. The amendment thus effectively precludes us from having a reasonable debate on whether the sentence of life imprisonment, even though it is only a maximum sentence that is rarely applied, is, perhaps, rather archaic and somewhat draconian.
	Amendment No. 8 could have given us the opportunity to have a reasonable discussion about the offence of desertion and its sentence. However, such a debate has been effectively sacrificed. Although I did not hear the speech by my hon. Friend the Member for Hayes and Harlington, the amendment seems to have been used as an opportunistic attempt to drag up again the old debate about the Iraq war, although, as my hon. Friend the Member for Rhondda said, that has nothing to do with the Bill. Frankly, the amendment has been tabled on a fraudulent prospectus. It is not possible for the nation to go to war illegally.

Jeremy Corbyn: How can my hon. Friend possibly say that a nation cannot go to war illegally? There was no outside attack and there was no UN approval, yet we invaded a country that was not threatening us.

Si�n Simon: This sovereign Parliament having voted to take that action, it becomes, as far as I am concerned, a legal and legitimate undertaking.

Angus MacNeil: As one of the supporters of the amendment, I was just looking back through the notes for my speech and I do not think that I mentioned Iraq once. The amendment was not about rerunning the issue of the Iraq war; it was about making sure that service personnel are not faced with the draconian penalty of life in prison.

Si�n Simon: I do not think that I mentioned the hon. Member for the Western Isles, if I may call him that, in my remarks about Iraq. I mentioned my hon. Friend the Member for Leyton and Wanstead, who it seemed to me spoke about little else than the Iraq war.
	It is not possible for this country to engage in an illegal war. Surely it is not practical, reasonable or intelligent to suggest that armed service personnel, on an individual basis, in theatre, should be not only allowed but encouraged to make decisions about whether they are engaged in a legal or an illegal war. That is absurd. Many of my constituents serve in the armed forces and do not have these dilemmas. They are keen, happy and proud to serve. It is not fair to put them in a position where their comrades are encouraged to speculate constantly on whether they should be there, or perhaps, in better conscience, to consider desertion.

Patrick Mercer: I am listening with great interest to the hon. Gentleman, who is making some profound points. Does he accept that if a soldier, a sailor or an airman is suddenly struck by conscience while on duty, there is a system whereby they can go to their platoon sergeant, platoon commander, company sergeant-major, company commander, regimental sergeant-major or commanding officer to represent their views and to say, I am reluctant to serve? They do not need to go absent.

Si�n Simon: Exactly. There is a system, and it is of long standing. The hon. Gentleman speaks of it with knowledge and from experience. He spoke equally eloquently about the extraordinary seriousness of the offence of desertion.
	All that remains for me to add is to reiterate that there could have been a serious point. I think that we could have had a reasonable argument about whether a maximum sentence of life imprisonment is necessary in a modern army, albeit that that maximum is not mandatory and is rarely applied. I regret that the supporters of the amendment have failed to take that opportunity and instead have chosen to rerun a debate that I do not think there is any point having anywhere any more. Certainly, this Committee and this Bill is not the place for it.

Mike Hancock: May I first, for the benefit of the hon. Member for North Durham (Mr. Jones), clarify the position as I see it on the Liberal Democrat Benches? We will support the Minister on this issue because we believe that it is the only sensible way that any military force which is made up of volunteers can operate. That is not ambiguous. It is not open to contradiction. It is crystal clear where we stand on the issue.
	I congratulate the hon. Member for Birmingham, Erdington (Mr. Simon). He made the point that a war, or action by our armed forces, is legal when this placethe Houseaccepts a proposition that we should send our armed forces into harm's way to fight on our behalf. They then have a clear, legitimate duty to uphold what they have signed up to do, which is to fight on our behalf, following a request from a democratically elected Government. Others, me included, may feel that the Government misled the nation on the pretext for going to war. However, that does not excuse members of the armed forces from obeying a direct order from Parliament that puts them in harm's way.

Jeremy Corbyn: The hon. Gentleman is missing the point. The decision to deploy British troops is made under the royal prerogative. Parliament was consulted by the Prime Minister before we went into what I believe to be an illegal war in Iraq. Surely the issue is the legality in international law, which has not been argued for and has not been sustained in the case of Iraq.

Mike Hancock: No one in the international community has made the case that the action taken, with which I did not agree, was illegal. Kofi Annan and others have voiced their opinion, but it is simply an opinion. The Chamber voted, against my wishes, to send our armed forces into harm's way, and they have served with credit to themselves and to the nation. The hon. Members for Rhondda (Chris Bryant) and for Newark (Patrick Mercer) spoke with great eloquence about the issues. It is not a question of whether a life sentence should be imposed for desertion. I should like to know whether the Members who support the amendment know how many members of the armed forces in the past 25 years have stood trial for desertion, how many have been sentenced to life imprisonment and how many have served more than 10 years in prison for the act of desertion. Not a single Member has told us the answer.
	Can the Minister tell the House how many of the 250,000 people who have served in our armed forces since we invaded Iraq have cited as their reason for leaving disquiet and discomfort at what they consider to be the illegal actions they were asked to carry out? The House would be interested to know whether there is any evidence to support the claim that a huge phalanx of people have left the Army because they did not like what they were asked to do in Iraq. There are many reasons to be critical of the Government's actions, but I cannot find any in this case.

Pete Wishart: I have no reason to doubt what the hon. Gentleman said about the many people who have been charged and given life imprisonment, or even spent 10 years in prison. Why, therefore, in his view, do we need this piece of legislation?

Mike Hancock: If my children's lives were on the line as the result of an act of cowardice and desertion by one of their colleagues, or if that colleague put their lives at risk with a harmful action, they ought to suffer the full consequences of the law. It is not for me to judge whether they should receive a life sentence or two, five or 10 years' imprisonmentthat is for the system to decide.
	The hon. Member for Newark spoke about commanding the largest battalion in the country of more than 900 soldiers for two and a half years on two active service deployments. One soldier could have faced court martial for something that could be construed as desertion. If we were on the receiving end when someone deserted their post, and if their action took our lives or the lives of our comrades, would we honestly not expect something more than a slap on the wrist or a two-year sentence for an individual who chose to disregard their responsibilities to the unit, let alone their responsibilities to the country?
	The Bill gets it right. Parliament should not allow any ambiguity in the way in which members of the armed forces can interpret their responsibilities, as that would be manifestly unfair to the men and women who daily put their lives on the line. It would be unfair to suggest that they can pick and choose, as they cannot do so. The hon. Member for Newark explained with a great deal of eloquence how the unit would dispense its own version of fair and just punishment if a colleague acted in such a wayalthough I do not wish to suggest for a minute that that is correct, as military justice should be seen to be fair and should be administered properly.
	Members of the armed forces should not be left in any doubt about the consequences of their actions. A sentence that may be for life is exactly that. Every court in the land has discretion in the determination of most sentences. I was concerned about the sentences meted out today to the three men who killed the young black lad in Birmingham last year. The judge recommended 25 years, but I am sure that if I was the parent of that young boy, 25 years would not be anything like long enough. We must judge these things on what we would expect if our sons and daughters were put in harm's way. We must ensure justice for them as much as for anyone else.

Harry Cohen: That sounds very good, but the hon. Gentleman is arguing for an excessive sentencelifefor people who are not putting other people's lives at risk, but in effect declaring the equivalent of a conscientious objection. The core of his opening argument was that if Parliament votes for it, it is all right. He is 150 years out of date. We now have international law and his attitude to that is cavalier, which is surprising, as the Liberals wanted us to be subject to EU law and supported all that EU involvement. Does he not recognise that international law is as important as ordinary law? The Serbian Parliament voted for war and said that if they voted for it, it must be all right. It was not all right.

Mike Hancock: Once again, the hon. Gentleman is trying to confuse the Committeebut it is he who is wholly confused about the issue. There is nothing in international law that has proven that there are currently, or have been in the past 10 years, British armed forces engaged in an illegal action. No international court anywhere has found any member of the British [Interruption.] The international court of public opinion is a different matter from the court of law about which the hon. Member for Leyton and Wanstead speaks. I am not cavalier about it; I am extremely concerned that the men and women who do their duty on behalf of this country know that they have the backing of the country for their actions, and that they are engaged in lawful business.
	We have had soldiers in Sierra Leone, Bosnia and several other parts of the Balkans, Afghanistan and Iraq. I do not believe that a significant number of those wanted to become conscientious objectors. If they had, we would know about it. We have a clear indication from the Library of the number of members of the armed forces who have sought to become conscientious objectors. We would also know because we regularly meet members of the armed forces.
	I met somebody who was decorated for bravery during the past five years. He did not agree with what the Government had asked him to do, but went and did his duty, knowing in his heart that he did not believe that it was the right thing to do. He was a member of the armed forces and, in his view, he was not in a position to cherry-pick the missions that he served on. He did his duty. He could, as he said to me, have opted to leave the armed forces, but he chose not to do so. He chose to do his duty.
	The hon. Member for Hayes and Harlington (John McDonnell) said, in the one part of his speech with which I did not have some sympathy, that when the history of what has happened is written, the real heroes will be those who refused to fight the war. That does a great disservice to the men and women who are daily putting their lives on the line for this country.

John McDonnell: The hon. Gentleman will recall that throughout my speech I paid tribute to the servicemen who are currently serving, for their courage and dedication. I do not want that comment undermined.

Mike Hancock: I agree entirely, but the hon. Gentleman also said that the real heroes will be those who chose to exercise their right not to go. I believe that that is a mistaken view that does no justice to the men and women whom he praised and whom all of us, I hope, support.

Alan Simpson: May I try and unravel some of the confusion that has run through the debate? The debate on amendment No. 9 in particular is not about whether there should be an offence of desertion, or whether there should be specific, defined parameters for the punishments. It is about the nature of the parameters, rather than about the existence of the offence.

Si�n Simon: That is true of amendment No. 9, but not of amendment No. 8, which specifically concerns the nature of the offence.

Alan Simpson: True, but I want to deal with issues that we need to view as distinct segments. One concerns whether there should be an offence that relates to the disobeying of orders to serve in what is defined in the Bill as
	the occupation of a foreign country or territory.
	The point was made that it is not possible for such an occupation or war to be illegal if the Government of the day have made the democratic decision that it is a legal and justifiable war, but that is deeply wrong. International law and the United Nations and its conventions define the distinction between the circumstances in which a war is unavoidable and the circumstances in which a country has the right to defend itself. But it is not true that any Parliament in any country can make a war legal, and that includes our own Parliament, just because it decides that it should be legal. In the case of the Serbian Parliament's decisions in respect of the war on Bosnia, we said consistently that we did not care that the Serbian Parliament had decided that it was a legal war for its own purposes; that was not the view of the international community. It is deeply dangerous for any Parliament to go down a path that says that if it decides that a war is legal, that makes it legal. That is not the framework set by the international community on the legality of international wars after the second world war.

Richard Benyon: Does the hon. Gentleman not understand that we are going down a long avenue of irrelevance here? This is a question of military discipline; it is not a matter of decision as to the merits or demerits, or the legality or illegality, of a particular war, or his perception of it.

Alan Simpson: I accept that, but I am saying that the argument about a war being legal just because we say it is legal is a dangerous path for this Committee to be led down, and it is not relevant to amendment No. 9. What is relevant is to question the legitimacy of the House setting a parameter of life imprisonment to the penalties for a refusal to obey an order in relation to desertion, when the guidance notes say:
	the maximum is life imprisonment if the offender deserts when on service, or under orders to go on service.
	The question is whether it should be appropriate in this day and age, in this Bill, which the House is passing now for the foreseeable future, to retain a life imprisonment parameter for a refusal to go on service.

Bob Russell: Will the hon. Gentleman confirm that his maximum would be two years, and thus with good behaviour it could be as little as one year, on a maximum sentence?

Alan Simpson: My maximum at this point just removes life imprisonment. I have no doubt that if the Committee agrees the amendment, the other place will send the legislation back with further amendments defining a more comprehensive and appropriate framework, and I have no objection to that. The point is that the Committee should express a view about whether we are willing just to nod through a presumption that the rationalisation of existing sentencing powers should be the maximum limit of life imprisonment, and it is important that the Committee should say no on that.

Si�n Simon: Whether one takes that point or not surely the problem is that the amendment does not account for the other end of the spectrum; it does not make the distinction between the much less serious offence of going absent without leave and the much more serious offence of desertion. In giving the same penalty for absence without leave and desertion, the amendment completely fails as a piece of law to make a very important distinction. Regardless of what happens at the top, what about what happens at the bottom?

Alan Simpson: My hon. Friend has made the case for a graduated tariff. I am questioning the presumption that the range of the tariff should automatically include as an upper limit life imprisonment for a refusal to obey an order to go on service.
	I want to discuss the case of Flight-Lieutenant Kendall-Smith, which has already been mentioned, and the trial of Major Florian Pfaff in Germany in 2004. The key point is the right of individuals to challenge the legitimacy and the legality of orders given to them. I do not for one moment assume that in an army manned by volunteers any of the young men and women who volunteer do so in a fly-by-night way, which is a deeply disrespectful presumption. When people decide to give themselves an extended weekend, the circumstances are different from when people consciously decide that they are no longer prepared to serve in a particular conflict or occupation. I accept that such people must face the consequences of their actions within a disciplinary court process, but I want this Committee at least to consider the options and their limitations.

Patrick Mercer: At the risk of sounding like a stuck record, I must point out that the hon. Gentleman has neglected to understand that we have regular volunteer forces which are frequently on operations. Almost everyone I know in the forces spends up to six months every year away on operations. Everybody understands that if they have a moral difficulty with the orders that they have been given, they can represent their views to their commanders in a responsible way. Those who choose to let down their comrades by simply going absent and then deserting need to be discouraged, and we need a serious tariff to deter them.

Alan Simpson: I do not have a problem with a serious tariff. My problem is that the Bill states that the maximum sentence for desertion in the context of a refusal to obey an order to go on service may be life imprisonment, which exceeds the bounds of reasonableness. If one were to step outside this House and this country, one would find that our European partners do not impose anything like the range of tariff penalties enshrined in the Bill.

Sarah McCarthy-Fry: Notwithstanding my hon. Friend's argument, with which I disagree, he has admitted that his amendment is flawed, because it does not offer an alternative to a two-year sentence, and he hopes that another amendment will be introduced in another place to resolve that matter. Does he agree that that is a dangerous precedent for the Committee to adopt?

Alan Simpson: Sadly, poorly thought-through legislation is increasingly driven through this House, which leaves another place to tidy up by using its common sense, so this would not be the first occasion on which that had happened.

Mike Hancock: The hon. Gentleman has mentioned our European partners. Those among our European partners who are transferring from a conscript army to a professional army are rewriting their military law, and the French, the Spanish and the Italians are all introducing legislation similar to the Armed Forces Bill. If he were to check, he would find that the penalty for desertion in the French army is a life sentence.

Alan Simpson: Let me come back to the hon. Gentleman with the current information about penalties and figures. As regards his comments about Labour Members not coming up with figures about the sentencing of those tried and imprisoned for desertion, that is not for lack of trying. Some of us have been trying for several weeks to get that information out of the Ministry of Defence or the Library, but it has not been possible to obtain it. I understand from some of my hon. Friends that members of the Defence Committee also tried to obtain it but were unable to do so. That is not an act of negligence on the part of those who are trying to make a different case.
	One of the things that was distinctly different in relation to the trial of Major Florian Pfaff in Germany was that although he and other members of the armed forces had to go through the court martial, at the end of that process they had a right to appeal to a civil court. The civil court overturned the court martial judgment on the major that resulted initially in his demotion. The arguments that he used were entirely about whether some of the orders that he was given were illegal orders relating to the preparation of weapons systems for use in the war on Iraq. Even the German civil courts were unable to question that, but they were able to rule on whether the major clearly, legitimately and conscientiously held those views. On that basis, they ruled in his favour.
	Nothing of that type is proposed for inclusion in this framework for our own armed forces. When Flight Lieutenant Malcolm Kendall-Smith attempted to use similar arguments about refusing to serve in Iraq, believing that the orders were illegal, he was told that he was not allowed to have that considered because the Attorney-General had ruled that it was legal. He was not allowed to ask whether the Attorney-General had made that ruling before he knew that there were no weapons of mass destruction, that no uranium was coming into Iraq for enrichment, or that there was no prospect of the UK being under threat and targeted within 45 minutes. None of that was challengeable.
	We should be using this opportunity to open out the legitimacy of rights to contest decisions and orders. That particularly concerns me in relation to the provisions on refusal to serve in an occupation, which refer not to a legal occupation but merely to an occupation. Members who say that that is not specific to Iraq or to any particular existing conflict are right. We need to be clear about our interpretation of this. Are we saying that irrespective of whether a conflict is legal, a refusal to serve should carry with it the prospect of a sentence of life imprisonment?

Tom Watson: The definitions are very important. Refusal to go on active servicethat is, refusing an ordercarries a 10-year sentence. Desertionthat is, abandoning one's colleaguescan carry a maximum sentence of life imprisonment. Refusing to go to Iraq counts as disobeying orders, and the maximum penalty is only 10 years.

Alan Simpson: I confess that we have had some interesting discussions on the Labour Benches about the interpretation of different clauses. It is clear that even those who support the wording as it stands recognise that there is considerable scope for confusion in interpreting the provisions. The guidance notes do not necessarily support what the Under-Secretary says. The Government have several opportunities in the Bill's remaining stages to table amendments to clarify the matter. However, it is important that we recognise the rights of serving men and women in the conflicts in which we have placed them. The point at which one crosses from legality to illegality is far from clear.
	We currently say that the occupation of Iraq is under a legal mandate of the United Nations. However, what do we do when, following the recent incidents in Basrathe part of Iraq in which the United Kingdom is operationalMohammad al-Waili, the Governor of Basra, said that British security control prevented the provincial government from purging the security forces of militia members? That was evidenced by the fact that Iraqi security forces had to defend UK troops against attacks by Iraqi civilians. It is understandable that serving personnel in those circumstances start to question the point when we cross from a legal mandate to an illegal occupation.
	Our proposal does not give people a get-out-of-jail card. It does not mean that they can take whatever action they like, depending on the state of the weather or whether they have a hangover. We are considering whether there is a tariff system for the available punishments in the armed forces that relates to the current duties of our serving men and women and makes sense to the general public.

Kevan Jones: I shall shortly lose the will to live. My hon. Friend keeps trying to move the goalposts. On whether occupation is illegal, I accept that there are differing views about Iraq. However, it was said earlier that UK troops are there under a UN mandate. If my hon. Friend wants to provide circumstances whereby people can pick and choose their interpretation of that UN mandate, he gives them a get-out-of-jail card and carte blanche to do what they want. That cannot happen in organised armed forces.

Harry Cohen: rose

Alan Simpson: I am tempted to start my reply, but I am conscious that another hon. Friend wants to intervene, so I shall deal with both points at the same time.

Harry Cohen: I want to pick up the points that my hon. Friend the Member for Rhondda (Chris Bryant) and my hon. Friend the Under-Secretary made in the context of legality and illegality and about who constitutes the enemy, which is defined in clause 367. The Under-Secretary said that the enemy was anyone who fires at us and that desertion applies only if someone leaves a conflict. However, many thousands of people, including women and children, are killed in air raids. They would not be classified as enemies under the Bill or the Under-Secretary's classification of anyone who fires at us. If a soldier discovers illegalityalthough it may be termed collateral damagehas not he a right to say that he wants to opt out of that, claim a conscientious objection and not be punished with life imprisonment?

Alan Simpson: I do not want to be trapped into trying to define the point at which an action is legal or illegal, or the tariff system that should follow a refusal to serve in specific circumstances.
	I believe that we must step back and provide that it is wrong to have a carte blanche presumption that the upper limit of the sentencing range should be life imprisonment. Those who are killed in modern wars are primarily not other soldiers. The second world war was probably the turning point in that regard. In modern wars, there is much more collateral damagethat is the modern phrase; it really means civilian casualtiesthan killing of combatants. It is therefore perfectly legitimate that our serving personnel should have a right and a duty to exercise their judgment about the point at which the threshold is crossed. That does not meant that they should walk away from their decisions with no consequences, but we need to define different parameters.
	I would like to tell the Committee about the parameters that exist elsewhere. In Austria, the maximum sentence for desertion is one year; in practice, it is usually between two and six months. In France, desertion in peacetime is punishable by up to three years' imprisonment

Kevan Jones: It is two years, is it not?

Alan Simpson: The notes say that it is three years.
	In Germany, desertion is punishable by up to five years' imprisonment, although deserters who return to their unit within a month may be sentenced for up to three years. In the Netherlands, desertion in peacetime can be punished by a maximum of two years' imprisonment. In wartime, the punishment is a maximum of seven and a half years' imprisonment. In Poland, refusal to perform military service or to carry out a task inherent in such service is punishable by a range of sentences, from six months to five years' imprisonment, or up to three years in wartime. That is the tariff system that is applied by other countries in the EU, and against which we ought to be measuring the revision of our own armed forces legislation.

Kevan Jones: That is exactly what the Bill is doing. At the moment, the maximum penalty for desertion is life imprisonment. Clause 8 will bring that down to a sentence of up to two years for general desertionthat is, desertion in peacetime or from a UK baseand up to life imprisonment for deserting when deployed on operational duties. So we are changing the law, and it will be better than the tariff that my hon. Friend has just cited for France, for example.

Alan Simpson: I would be happy for the Government to come back with a proposal for an improvement on the French system

Kevan Jones: It is in the Bill.

Alan Simpson: Clause 8 does not represent an improvement on the French system. It will mean that officers serving on the front line who can see at first hand what is happeningunlike us, who simply have to read the reports that are presented to us herecould face substantial charges. It is incumbent on the House to say that such charges are inappropriate to the world in which modern warfare is being conducted, and to the expectations and rights of those young men and women who have volunteered to put their lives on the line in the service of this country.
	Let us take a step back from the debate for a moment. Over the past couple of weeks, there has been a huge fuss about the Home Office releasing people who have a track record of murder or rape. People who have committed criminal offences such as those can get early release from prison. To enshrine in the Bill the prospect of life imprisonment for a refusal to kill seems to make a nonsense of the ethical responsibilities that Britain should be carrying in the modern world.

Gerald Howarth: We have debated this matter for about an hour and a half, and I am bound to say that Eric Forth would have approved of Parliament holding the Government to account in this way. I therefore make no complaint about the time taken to discuss these matters. Indeed, we have had an extremely good debate.
	I should like to pay particular tribute to my hon. Friend the Member for Newark (Patrick Mercer), who undoubtedly brings real experience to the House and is prepared to share it with us. We should not take his advice lightly. I should also like to pay tribute to the hon. Member for Rhondda (Chris Bryant), who is unfortunately not in his place at the moment. This was perhaps the only time that I have entirely agreed with everything that he said. That will probably do him more damage than me, but still
	I also salute the hon. Member for Stoke-on-Trent, South (Mr. Flello) for his interventions. Both he and the hon. Member for Rhondda demonstrated the value of the armed forces parliamentary scheme, whose tie I happen to be wearing today, in case the Minister had not noticed. Their contributions, as well as those of others who did not mention that they had taken part in the armed forces parliamentary scheme, illustrate the great benefit that that scheme brings not only to Members of the House but to the armed forces.
	I also welcome the Minister to his new position and congratulate him on his post. He has had something of a baptism of fire in having to deal straight away with a 300-clause Bill, which has a huge amount of detail. We wish him well, and I am trying to assist him. Clearly, the fire is coming at him from his Benches rather than from the Liberal Democrat Benches, and it is certainly not coming from the Conservative Benches.

Julian Lewis: Red on red.

Gerald Howarth: My hon. Friend says from a sedentary position that the nature of the fire is red on red.

Bob Russell: As the hon. Gentleman has welcomed the new Minister, will he join me in paying tribute to the previous Minister, who piloted the Bill for four months? I am led to believe that he was about to make that point, and I am sure that I shall endorse what he was going to say in criticising the Prime Minister for sacking the previous Minister.

Gerald Howarth: I am extremely grateful to the hon. Member for Colchester (Bob Russell), who represents another important garrison townalmost as important as Aldershotfor mentioning that point. Having welcomed the Minister, I was indeed going to pay tribute to his predecessor, the hon. Member for Islwyn (Mr. Touhig), with whom I have had an extremely interesting and constructive debate on the Bill. I thank him for the efforts that he made to ensure that we were as well briefed as we could be on the implications of the Bill, and I salute him for that. As this is a moment of salutations, I also thank the Bill team, whose presence we are not allowed to acknowledge in the Chamber, but no doubt the message will get to them that they have also been extremely helpful in relation to getting this legislation right, which is of great concern to all Members of the House.
	On the amendment, I also pay tribute to how well the hon. Member for Hayes and Harlington (John McDonnell) moved it, with great dignity and honour, save for the slight disagreement drawn to our attention by the hon. Member for Portsmouth, South (Mr. Hancock), on which I think that he is right. Nevertheless, the hon. Member for Hayes and Harlington made his case in a coherent and restrained way.
	It is claimed that the desertion clause has been rewritten to punish those who refuse to serve in Iraq with life imprisonment. The amendment seeks to remove occupation of a foreign country from the categories of desertion, and removes the punishment of life imprisonment for the most serious classifications of desertion. The desertion clause has not been rewritten to cover those who refuse to take part in the occupation of Iraq, as I am sure that the Minister will also tell the House. It does not increase the punishment for desertion to life imprisonment; it reduces the maximum penalty for most desertion cases by reintroducing a two-tier classification of desertion that takes us back to the position under the 1955 Act, as the hon. Member for North Durham (Mr. Jones) pointed out. That Act included two tiers of desertion. Less serious forms of desertion, including desertion while in the UK, were punishable with a sentence of up to two years' imprisonment; the more serious form, desertion while on active service, carried a maximum sentence of life imprisonment. Occupation of a foreign country was included in that more serious form, and the hon. Member for Rhondda pointed out the importance of having that provision in the Bill.
	In 1971, new armed forces legislation amended the desertion offence and ended the two-tier punishment for desertion, counting all forms of desertion together, with a maximum sentence of life imprisonment. The reason for that change was the situation in Northern Ireland, which, as Northern Ireland is in the United Kingdom, was not covered by the definition of active service. However, desertion to avoid serving in the Province was considered just as serious as desertion to avoid active service. Little changed in the everyday application of the punishment for desertion, and the punishment continued to reflect the seriousness of the offence.
	Therefore, the Bill merely reinstates the two-tier provisions of the earlier Act. It includes a lower tier of less serious forms of desertion, with a maximum sentence of up to two years, and includes the equivalent of desertion while on active service, with a maximum punishment of life imprisonment. The only difference between that and the earlier Act is that the Government have removed the term active service. They have included the provisions and definition of active service from the 1955 Act in the Bill. The Government have therefore reduced, not increased, the maximum sentence for the lower forms of desertion. They have taken the armed forces back to the position under the 1955 Act. They have not included foreign occupation because of Iraq; it is nonsense for the awkward squad to make that claim. Desertion while occupying a foreign country has had a punishment of up to life imprisonment for the past 50 years.
	Mention has been made of two high-profile recent cases. The first was that of Flight Lieutenant Kendall-Smith. He was jailed for refusing a direct order. He was punished not for his conscientious objection but for his failure to obey an order. He was court-martialled for disobeying a direct order to report for pre-deployment training. His claim that he was acting on principle has no legal basis, and his sentence rightly reflects that.
	However, Ben Griffin, the SAS conscientious objector, did not refuse a direct order, and nor did he desert. While he was on leave, he told his commanding officer of his objections to the war and, through the existing procedures, left the Army. That was a perfectly honourable course of action for a volunteer soldier to take. He decided that, in all conscience, he could not obey the order. The hon. Member for North Durham is again right that this country is extremely fortunate that those who make up our armed forces are not automatons but have a highly attuned sense of morality and are extremely sensible and decent people. Mr. Griffin took a principled decision. He did not make the fuss that the chap in the Royal Air Force made.

Angus MacNeil: On a small point, Ben Griffin's words and reasons were:
	I didn't join the British Army to conduct American foreign policy.

Gerald Howarth: Whatever his reasons were, he took an appropriate course of action that was open to him and ceased to be a soldier without all the grandstanding that Flight Lieutenant Kendall-Smith undertook. He proved that somebody who has a conscience and feels that that military service, which he was commanded to undertake, was incorrect, has a means to avoid that without all the histrionics and without breaking the law. That is what Ben Griffin did.

Harry Cohen: Ben Griffin also told  The Sunday Telegraph that he had witnessed dozens of illegal acts by US fighters who viewed Iraqis as sub-human. He said:
	I saw a lot of things in Baghdad that were illegal or just wrong.
	The hon. Gentleman places great emphasis on desertion while on active service, and saying that that warrants the highest sentence is almost like an ultimatum. Ben Griffin talked about the Americans, but if someone witnesses in their troop such illegal acts and civilians being killednot enemies, but what we call collateral damagewhat is the remedy, if they are not to take part in such acts, other than to desert? Surely the hon. Gentleman's distinction is a false one.

Gerald Howarth: There is a whole system of military law that is designed to ensure that those who break the law in the fashion that the hon. Gentleman sets out are brought to account. Indeed, a number of cases are currently before the authorities for that precise reason. With that intervention, I am afraid that he blows his case straight out of the water.
	Serving in Iraq is neither immoral nor illegal. As the hon. Member for Hereford (Mr. Keetch) said, that war and the subsequent deployment there are illegal under neither United Kingdom nor international law. The deployment in Iraq is supported by United Nations resolutions, and the Attorney-General has reported that the United Kingdom's actions in Iraq are not illegal.
	Let me remind the Committee of an interesting moment, when the Chief of the Defence Staffthen Admiral Sir Michael Boyce, now Lord Boycespecifically asked on behalf of every serviceman and servicewoman under his commandthat is, everyone in uniformwhether the war was legal. He obtained that assurance from the Government. He was right to obtain it on behalf of all who served in Her Majesty's armed forces, and from that time onwards every person in Her Majesty's armed forces was protected.
	Perhaps the Minister will be able to confirm that it is unlikely that the maximum sentence would ever be imposed, and that the most serious punishments would relate to desertion from one's post and putting the lives of one's comrades in danger in the way described by my hon. Friend the Member for Newark. I am sure we all agree that it is absolutely right and proper for us to ensure tonight that in such cases a suitable punishment is available. It would be a dereliction of our duty to protect our armed forces if we removed the possibility of life imprisonment for desertion in the circumstances outlined by my hon. Friend and alluded to by others. I therefore hope that the Committee will reject the amendment and support the Bill as it stands.

Tom Watson: I thank the hon. Member for Aldershot (Mr. Howarth) for his kind words. I must say that when I walked into the Chamber and saw the massed ranks of the socialist Campaign group of Labour Members ready to do battle, for a split second I felt like deserting my own postbut my commanding officer sitting on my left, my right hon. Friend the Minister of State, stiffened my resolve, as he would then have had to respond to the debate.
	The debate has been very informative. The speech that I will pick out is that of the hon. Member for Newark, which was incredibly well informed and orotund; the argument moved on much further following his contribution. It has been a debate about definitions, and I am anxious to clear up the misunderstandings over the changes that we have made to the offence of desertion.
	Clause 8 preserves the offence of desertion, but makes two important changes to the existing offence. I shall describe them in a moment. Under the clause, a serviceman deserts by absenting himself with the intention of never returning to duty, or by absenting himself in order to avoid relevant service. Relevant service is defined as
	actions or operations against an enemy...operations outside the British Islands for the protection of life or property; or...military occupations of a foreign country or territory.
	The definition essentially reflects the definition of active service in the current service discipline Acts. Those are the most critical and potentially hazardous duties for service personnel, so the offence is all the more serious when the intention or effect of the serviceman's actions is to avoid that relevant service.
	Amendment No. 8 seeks to redefine relevant service to exclude operations outside the British Islands for the protection of property or military occupation of a foreign country or territory. Amendment No. 9 seeks to reduce the maximum sentence for desertion to two years' imprisonment in all casesequivalent to the maximum sentence for absence without leave, as was pointed out by the hon. Member for Newark.
	I listened to the arguments advanced by my hon. Friend the Member for Hayes and Harlington (John McDonnell), and I think that they were put honestly and coherently, but, frankly, I disagree with him. Under existing provisions, the definition of desertion refers to going absent with the intention of never returning to duty, going absent to avoid any service overseas, or going absent to avoid service when before an enemy. All those attract a maximum sentence of life imprisonment.
	That definition includes going absent to avoid a posting to Germany, training in Canada or a detachment to Cyprus, as well as the types of relevant service that I have described, simply because it involves service overseas. Under the existing law, if a soldier avoids a short posting to Germany with his unit because he is having trouble with his girlfriend and wants to sort things out, he is in theory guilty of desertioncarrying a maximum sentence of life imprisonmenteven if he intends to return to duty.
	Our first change is to restrict the offence to exclude that unfairness. It will not cover any service overseas, only relevant service. Our second change is to reduce the current maximum sentence of life imprisonment to a maximum of two years, except when desertion is to avoid relevant service. Under the current law, the maximum is life imprisonment in all cases.
	Members will appreciate that the operations involved in relevant service are of the greatest importance. When such operations are involved, every member of the forces must have complete confidence in the other members of his unit, not least because the operations are dangerous and demanding. Those who avoid such service increase the danger to their colleagues, and damage morale. In a disciplined fighting force, that is totally unacceptable.
	Even in the days of compulsory military service, the law reflected the particular seriousness of avoiding such service. It is, if anything, even more serious in a professional volunteer armed force for there to be a distinction between types of dangerous service of the kind proposed by my hon. Friend.
	I hope that I have explained to my hon. Friend what we are trying to do in clause 8. I hope he will accept that the scope and definition of the offence is new but far less severe than it was before, and that the true position is the reverse of what he has asserted.

John McDonnell: I was expecting a brief debate, as clause 8 is one of nearly 300 clauses, but I am pleased with the level of the debate in which we have engaged. I want to focus on the constructive elements that we can take from it. For the record, I also want to establish clarity.
	My hon. Friend the Member for Rhondda (Chris Bryant) said that amendment No. 8 was old-fashioned, relating to the first world war rather than to modern military service. The Bill was intended to be a modernising piece of legislation. What concerned me was that it translated the life sentence threat from existing legislation on sanctions to the new legislation.
	I accept the pedanticno, the constructivepoint made by my hon. Friend the Member for North Durham (Mr. Jones) that the reintroduction of the two-year limit gives us some flexibility. As my hon. Friend the Member for Birmingham, Erdington (Mr. Simon) said, it moves us towards a graduated tariff approach. I agree with him that we could have had a better debate about that. The debate on clause 8 did not feature in the pre-legislative scrutiny Committee, and has not arisen in the House until now.
	My first objection to the clause is that it is not modernising legislation; it simply translates the life sentence from earlier legislation. As for my second objection, I respect the views that have been expressedalong with many others today, I pay tribute to the hon. Member for Newark (Patrick Mercer) for bringing to the Chamber his professional experiences on the groundbut we should look again at the process for dealing with conscientious objection. The process that the hon. Gentleman described, as he has seen it, is not the process described in the evidence submitted to the Committee by the successor to the original consultative body, the Peace Pledge Union, which is meant to advise the Government on these matters. Its view is that the conscientious objection process as it stands is not accessible, does not give adequate information to individuals who wish to gain access to it, and therefore undermines the process overall.
	The third issue, on which there is some agreement across the Committee, is the issue of severity. I think there is a general view that life imprisonment is currently the exception. I thought that we heard earlier from the Liberal Democrats that they did not support the inclusion in this clause of the sanction of life imprisonment. I should be grateful for clarification.

Nick Harvey: I said at the start of the debate that in almost no circumstances could I envisage life imprisonment being a suitable penalty. I agreed with the hon. Member for Birmingham, Erdington (Mr. Simon), who said earlier that we should have debated a provision that brought the life sentence punishment down to an intermediate level. Had there been such a provision, I could have supported it, but as we have heard, the amendment tabled by the hon. Member for Hayes and Harlington would shift us toward a two-year sentence.

John McDonnell: Best to end when one is winning. The message for the Government is that a significant body of Members in Committee, regardless of party, believe that life imprisonment is a disproportionate sanction in such cases.  [Interruption.] I said that a significant body agree; there will of course be others who disagree. I am not asking for consensusyet.
	The discussion has centred on the argument that this is a modern, volunteer and professional Army. My hon. Friend the Member for North Durham said that if it was a conscript Army, that would be a different matter altogether and life imprisonment most probably would not be appropriate. There is no difference between us, and if we ever move toward a conscript Army, we will need to debate the matter, because I agree that such a sentence would not be appropriate. However, a modern, volunteer, professional Army should not be motivated by fear of the sanction of life imprisonment, either.
	This legislation fails to show a modern understanding of why people desert. They desert because of fear or trauma, or out of conscience, and we should accept that. We should not penalise them with life imprisonment; we should accept that it is a disproportionate sanction, not the appropriate one.
	It has been argued that we cannot allow individual soldiers to exercise a right of veto over action, but the reverse is the case.

Angus MacNeil: rose

John McDonnell: Let me finish this point. In human rights legislation, we require individual soldiers to exercise their own judgment as a duty. Mention has been made of Nuremberg, but this was an issue before then, and it goes well beyond Nuremberg. There is a duty placed on each of us, as individuals in a democratic societybut in particular on soldiers and members of the militaryto exercise judgment about whether what we do is right and lawful. I reiterate the point that, whatever debates take place in this or any other Parliament, they do not override that individual duty.
	Amendment No. 8 clarifies the situation concerning military occupation. More importantly, amendment No. 9 emphasises the fact that life imprisonment is a disproportionate sentence that does not relate to the reality of a modern Armyan Army that is based upon volunteers and professionals, and which, as we all agree, is in most instances motivated by moral courage. Such an Army should not be motivated by, or threatened by, fear of such a sanction. On that basis, I shall press amendment No. 9 to a Division. However, I beg to ask leave to withdraw the amendment.
	 Amendment, by leave, withdrawn.
	 Amendment proposed: No. 9, in page 5, line 18, leave out from 'offence' to 'must' in line 20. [John McDonnell.]

Question put, That the amendment be made:
	 The Committee divided: Ayes 19, Noes 442.

Question accordingly negatived.
	 Clause 8 ordered to stand part of the Bill.
	 Clauses 9 to 34 ordered to stand part of the Bill.

Clause 35
	  
	Annoyance by Flying

Question proposed, That the clause stand part of the Bill.

Gerald Howarth: I want to raise a small technical point that has arisen since our lengthy discussions in the Select Committee. I want to express some of my concerns, and those of others involved in flying activity, about the clause. The provision states:
	A person subject to service law commits an offence if...he flies an aircraft so as to annoy or be likely to annoy any person.
	We can all conceive of a great many people who would consider any form of flying as an annoyance, so the number of prosecutions could be extensive. In the Select Committee, I was assured that no such prosecution would lie unless the conditions set out in paragraphs (b) and (c) of subsection (1) applied, in particular that the person flew recklessly or intentionally to annoy.
	It is important that the Royal Air Force has protection for its low-flying training, which is critical so that our pilots can be trained to carry out the operations that they have undertaken with such spectacular and conspicuous gallantry and effectiveness. If they cannot fly low without the risk of arraignment, the provisions are not right. I am assured by people well-versed technically in such matters that RAF pilots are safe.

Des Browne: They are safe from prosecution.

Gerald Howarth: We have it from the lips of the Secretary of State so I hope that message will go out to all RAF pilots

Jeremy Browne: And the Fleet Air Arm.

Patrick Mercer: And the Army Air Corps.

Gerald Howarth: Indeed. I can assure my hon. Friend that I am about to speak at greater length about the Army Air Corps.
	An ex-military aviatora soldier of 35 years' standing, who is now the airfield manager at Middle Wallop, but has 5,000 hours as a helicopter pilot in the Army Air Corpshas drawn to my attention an anomaly in paragraph (b), which deals with punishments. An officer guilty of causing an annoyance by flying can be punished only by loss of seniority or by a fine, but a non-commissioned officer may be sentenced to two years' imprisonment. As many Members know, the pilots of the Army Air Corps are predominantly NCOs, as was the case in the RAF during the second world war, although not nowadays. It has been suggested that the penalty for a proven offence may discriminate against NCOs in the Army Air Corps. Can the Minister comment on that? I realise that that may be difficult as he is new to his post.

Tom Watson: I thank the hon. Gentleman for his eagle-eyed egalitarianism. Perhaps I could describe the clause, which preserves a long-standing offence whose effect remains unchanged. It operates where a service pilot flies an aircraft in such a way that he annoys, or is likely to annoy, any person but he could reasonably have avoided doing so. Intent, recklessness or negligence by the pilot in relation to the annoyance caused must also be proved.
	Unlike the offence of low flying, the annoyance offence can be committed where the pilot is flying the aircraft in accordance with regulations and in an authorised flight plan. For example, the last RAF prosecution, which was in 1996, involved a pilot who was authorised to fly low in a particular area. He flew over his parents' house several times, allegedly, and understandably, causing annoyance to their neighbours. The offence is considered to serve a valuable purpose in deterring such conduct, which might bring the services into disrepute with the general public.
	I recognise the point that the hon. Gentleman makes. If it is an issue, perhaps we can revisit it in another place if we have to do so.

Gerald Howarth: I am grateful to the Minister for that sympathetic view. He said that in addition to the annoyance there has to be an intentionally reckless or negligent aspect. It is important that it is understood that those conditions must apply, too.
	I am grateful to the Minister for his willingness to look at the point relating to the Army Air Corps. Perhaps it could be considered when the Bill goes to another place.
	 Question put and agreed to.
	 Clause 35 ordered to stand part of the Bill.

Clause 36
	  
	Inaccurate certification

Question proposed, That the clause stand part of the Bill.

Gerald Howarth: The clause deals with the inaccurate certification of equipment. We are concerned that the Government have not looked adequately at the discrepancy in the application of the offence between the Navy and the RAF on the one hand and the Army on the other. The Bill makes it an offence to certify inaccurately naval and air force equipment but not Army equipment.
	My hon. Friend the Member for Salisbury (Robert Key), who raised that point in the Select Committee, apologises for not being at the debate. He is not in the Chamber for good and bad reasons; the good reason is that he has had the operation that he has wanted for many months. I am sure that all Members will wish him a speedy recovery and highly increased mobility. I suspect that he may be watching our proceedings, so we can convey those good wishes instantly.
	In the Select Committee, the hon. Member for Islwyn (Mr. Touhig), then the Under-Secretary of State for Defence, said that my hon. Friend had made an important point. The hon. Gentleman said:
	I am conscious of the fact that I have not really answered it sufficiently well.[ Official Report, Select Committee on the Armed Forces Bill, 20 March 2006; c. 37.]
	He clearly wanted to hand that task to the Under-Secretary of State for Defence, the hon. Member for West Bromwich, East (Mr. Watson) as an opening coup, so that he could deliver some satisfaction to the Opposition. I hope that the Minister will consider that point.
	If we do not encompass Army equipment as well, someone who fails to certify an air-to-ground missile accurately could be put on a charge, but someone who fails to certify a ground-to-air missile adequately would not have committed an offence. It is a small point; but, none the less, as we are reviewing all the legislation in this respect, we ought to take the opportunity to try to sort it out if that is necessary.

Tom Watson: Yes, I read the transcript of that debate, and it is something of an ankle pass. Let me describe the clause. It will preserve the offence that is contained in the service discipline Acts. The offence is committed where a person who is subject to service law makes or signs a relevant certificate without ensuring its accuracy. It is not necessary that the certificate contains a mistake; it is sufficient that a person makes or signs it without ensuring its accuracy. The purpose of the offence is to promote a systematic and thorough approach to safety checks. A relevant certificate is one that relates to any matter that affects the seagoing or fighting efficiency of any of Her Majesty's ships or one that relates to any of Her Majesty's aircraft or any aircraft material.
	In relation to aircraft and aircraft material, there is no equivalent to the seagoing or fighting efficiency test that is applied to ships, because ships fulfil a wider role than aircraft, such as providing domestic accommodation for naval personnel. As a result, many checks connected with a ship are the subject of certification but are not safety-related. It would not be appropriate to catch such wider, non-vital checks under this offence, which is intended to promote and ensure safety. Given the particular role played by aircraft, all certificates produced in relation to them and their material fulfil a safety function.
	To turn to the point about land-based vehicles that was made by the hon. Member for Aldershot (Mr. Howarth), the clause will not extend to other land-based types of equipment. Safety, promoted by a system of regular checks, is clearly very important in relation to such equipment. However, the implications of inaccurate certification in respect of ships, aircraft and aircraft material are viewed by all three services as being so crucial that a specific and separate offence continues to be merited.

Gerald Howarth: There is a hint of complacency in that answer, especially as I raised the issue of missile technology. Let us take, for example, a Rapier battery or a multiple-launch rocket system. Those are very complex bits of kit, and they can do just as much damage as a missile launched from an aircraft. As an aviator, I understand the importance of accurate certification of aircraft and their components and, to a certain extent, naval vessels, but there is a clear case that some of the equipment that the Army has in its arsenal today is of equal sophistication and equal lethality, and the result of the inadequate or negligent maintenance of that equipment can be just as devastating as negligence in respect of naval and RAF equipment. So I should like to ask the Minister to look at that again. Given that we are reviewing the whole law that relates to military discipline, I can see no case to leave out the Army. I am afraid that I am not persuaded by what the Minister has said. I do not intend to press the clause to a vote, but I am not really convinced at the moment.

Tom Watson: I take on board what has been said by the hon. Member for Aldershot. I read the transcript of the debate in the Select Committee, and as my predecessor undertook, I took the issue back to the Department, which felt that the consequences of incorrectly maintaining an aeroplane part could be catastrophic, so it merited an extra offence. However, I understand the point that he makes; I will take it back and talk to the three services.

Gerald Howarth: I am grateful to the Minister for doing that, and on that basis, I am happy not to push the clause to a vote.
	 Question put and agreed to.
	 Clause 36 ordered to stand part of the Bill.
	 Clauses 37 to 53 ordered to stand part of the Bill.
	 Schedule 1 agreed to.

Clause 54
	  
	Charges which may be heard summarily only with permission or by senior officer

Question proposed, That the clause stand part of the Bill.

Harry Cohen: Clause 54 relates to some of the other clauses that we have dealt with, but it gives me the opportunity to ask about children in the armed forces, by which I mean those under the age of 18 and how they will be dealt with under the Bill. We have just considered offences that may be dealt with at summary hearing. Indeed, clause 50 deals with the jurisdiction of a court martial. Clause 54 deals with charges that may be heard summarily only with permission or by a senior officer, and some of those charges will apply to the category that I have referred tochildren.
	International lawin particular, article 1 of the convention on the rights of the child, which entered into force in 1990, states:
	For the purposes of the present Convention, a child means every human being below the age of eighteen years unless under the law applicable to the child, majority is attained earlier.
	We are one of the 192 countries that have signed that treaty, which came into force in May 2000, and we ratified the protocol on 24 June 2003. That protocol sets 18 as the minimum age for direct participation in hostilities, and my first question is whether that is the case with under-18s in our armed forces. Can they be involved hostilities? [Hon. Members: No.] I want to get a clear answer on that, because it has an important impact not just on an earlier debate but on the way that under-18s are treated. Presumably, if the hon. Members who shouted no are right, under-18s will not be subject to clause 54, which is all about being dealt with summarily by a senior officer. However, I should like to hear an explanation of that.
	Before under-18s come into the armed forces, parental consent is supposed to be obtained from parents or legal guardians. Consent must be given freely by the youth and the parent or legal guardian, but are there any special arrangements for orphans or those who have been in care, or are they not accepted into the armed forces? I should like an answer in that respect.
	My next pointI want to make four points in all, and this is my thirdis whether there is complete equivalence between the way that under-18s are dealt with under court martial arrangements and in civilian criminal courts. I should like to get an explanation of that, because it is important that there should be a degree of equivalence. I note that there can be a period of detention and training followed by a period of supervision and I welcome that. That should be under the auspices of the armed forces. However, there is a quirky bit in the law. The Library tells me that if an offender breaches his or her supervision requirements upon release from custody, that can be dealt with only by a civil court, not a service court. I wonder why that quirky element exists. If the supervision is laid down by a court martial, it should be undertaken by the same people. They seem the obvious people to undertake that supervision. The Library also tells me that there are arrangements for those under the age of 15 who are persistent offenders. That is an interesting point. How do the armed forces deal with persistent offenders? Will they be subject to clause 54 and will a senior officer become involved in those cases?
	My last point relates to the most serious offences, such as murder. In a civilian context, a judge would have a say, but we have a funny arrangement whereby the Secretary of State also has a say on terms of imprisonment and how those people are dealt with. That seems to apply to youths who commit offences of that sort, even though they are in the armed forces. I seek clarification on that.

Kevan Jones: On a point of order, Sir Michael. I have listened very carefully to my hon. Friend. May I ask for your guidance on the relevance of what he is saying to the clause?

Michael Lord: The hon. Gentleman echoes my own thoughts. The hon. Member for Leyton and Wanstead (Harry Cohen) is wandering generally around the clauses. Will he tell us not just which clause he is addressing, but which precise element of that clause?

Harry Cohen: I am talking about
	Charges which may be heard summarily only with permission or by senior officer.
	Some of those will relate to childrenthose under the age of 18. I would have thought that that was pretty plain.

The Second Deputy Chairman: Which clause is the hon. Gentleman speaking to?

Harry Cohen: I am speaking to clause 54, as I said at the outset, but I have said my piece. The matter was not raised at all in the Select Committee, but it is an important matter. I am not opposing how the Government or the armed forces deal with children, but I do think that the matter is worth commenting on.

Tom Watson: Let me describe what the clause does before I try to answer my hon. Friend's many specific points. The clause provides that eight further criminal conduct offences can be dealt with at a summary hearing, but only if the commanding officer has permission from a higher authority or is an officer of at least two-star rank. The eight offences are listed in part 2 of schedule 1 and include, for example, assault occasioning actual bodily harm and possession in a public place of an offensive weapon. Those offences cannot be dealt with summarily at present by Army and RAF commanding officers. The requirement to obtain higher authority permission before those charges can be heard summarily means that an officer senior to the commanding officer in the chain of command will always be involved in the decision to hear those more serious charges summarily.
	To answer some of the points that my hon. Friend raised, jurisdiction over civilian children will not be affected by the clause, although those children who have their parents' permission to sign up at 16 and beyond will be. We obviously try our utmost not to put in the front line those who are under 18. I will have to write to him about the point that he made about orphans. I suspect that their legal guardians could give permission, but I do not want to speculate about that. If I have missed out any of his points, I will read them in  Hansard and respond as best I can.

The Second Deputy Chairman: Is the hon. Member for Leyton and Wanstead (Mr. Cohen) content?

Harry Cohen: Yes, I am.
	 Question put and agreed to.
	 Clause 54 ordered to stand part of the Bill.
	 Clauses 55 to 113 ordered to stand part of the Bill.
	 Schedule 2 agreed to.
	 Clauses 114 and 115 ordered to stand part of the Bill.

Clause 116
	  
	Referral of case following investigation by service or civilian police

Question proposed, That the clause stand part of the Bill.

Julian Brazier: I welcome the opportunity to speak to the clause because it raises issues that go to the heart of the one really major defect in the Bill. I pay tribute to my hon. Friend the Member for Aldershot (Mr. Howarth), who fought his corner in the most doughty wayI should say not his corner, but the corner of the many people in the middle ranks of the armed forces who believe that a profound mistake is being made in the clause. He worked so hard in the Select Committee that that rare event, a tied vote, occurred. The amendment was not made only because of the Chairman's casting vote. That prevents us from tabling that amendment to the clause in this Committee of the whole House. However, we have an opportunity to discuss the issues in a clause stand part debate. I hope that if we do not manage to reverse things here, they will be sorted out in another place.
	It is a sombre time for the armed forces. Week after week we hear the Prime Minister at Prime Minister's questions expressing sorrow at the deaths of more service personnel. I hope that it is in order for me to mention the death of Sarah-Jayne Mulvihill, who was educated in Canterbury and whose parents live just outside Canterbury. She was serving in the Air Force when she was killed, but she started her military service in the Territorial Army in the 3rd Battalion the Princess of Wales's Royal Regiment in Canterbury. Those in our armed forces and their parents, wives, husbands and children look to the Committee to support them.
	At this late stage, following the points made by my hon. Friend the Member for Aldershot, I seek to persuade the Committee to understand why the clause is so badly flawed. I want to look at it from two angles. First, I want to try to show in general terms the damage that it does to the way in which the chain of command operates, and secondly, I want to consider it specifically in the context of events in Iraq and, potentially, other theatres.
	On the chain of command, Lord Boyce commented:
	we interfere with the unique linkage between the commanding officer and his men at our peril. [ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
	In the Select Committee, the Government made much of the support of the current chiefs of staff for the proposal, but any current or former chiefs of staff would say that they can only be as good as the chain of command beneath them. It is an old adage that a chain is as strong as the weakest link. All aspectsall levelsof the chain of command have to operate and have to feel confident in the system for it to work properly.
	We should all be concerned at the news in the Sunday papers over the weekend that a group of officers appears to be in the process of setting up a staff association to represent independently the views of the middle ranks. I do not applaud that and I certainly do not blame the chiefs of staff for that, but the Government should ask themselves whether the habit that has grown up during the life of this Government of constantly publicising the views and role of the chiefs of staff in a way that would never have happened a generation ago is healthy for the armed forces. In the old days, advice to Ministers was treated as confidential.
	The Government's explanatory notes on the clause state:
	Its purpose is to ensure that serious cases are seen by the DSP but that all other cases are passed to the CO.
	They go on to say:
	Subsection (2) requires that a service policeman who considers that there is sufficient evidence to charge the person with a Schedule 2 offence (i.e. the most serious offences) must refer the case directly to the DSP.
	Therein lies the rub. In plain English, the clause boots the commanding officer right out of the picture; it is not just that a commanding officer's power to dismiss charges is being removed. In Select Committee, the Government refused a moderate amendment that would simply have allowed the commanding officer to be consulted, which was supported by the Conservatives, the Liberal Democrats and one Labour Member.
	There is enormous sympathy on both sides of the House for the work that our armed forces do. Imagine for a moment the position of a member of the armed forces. In a different context, I used to talk about a man who was frightened, tired and cold, but it would be more appropriate to talk about men and women in Iraq being frightened, tired and hot, which is not always the best framework in which to make decisions. The one safeguard that such people had in the past was the knowledge that before they could be charged with a serious offence, someone who really understood what they were going througha commanding officerwould first have the chance to examine the situation and, if necessary, dismiss the charge. The clause not only removes that safeguard, but goes further by preventing service policemen from even consulting the commanding officer before sending charges forward.
	A great deal was made in Select Committee about the Trooper Williams case. The Committee will recall that Trooper Williams stopped an enemy terrorist who was found to be carrying a large quantity of ammunition at a road block. When the man ran off, Trooper Williams, at some risk to his own life, pursued him and, eventually, shot him to stop him getting away. The commanding officer dismissed the charges against Trooper Williams. When the Attorney-General referred to that fact, he said:
	The matter could not, because of the actions of the commanding officer, be dealt with by way of court martial. It was referred to me to consider further action.[ Official Report,  House of Lords, 7 April 2005; Vol. 671, c. WS 92.]
	The then Under-Secretary of State for Defence, the hon. Member for Islwyn (Mr. Touhig), commented:
	Discipline is essential and we depend on service law to enforce it.
	Astonishingly, on the basis on that one case, which was subsequently thrown out by a court martial, the ancient protection for our armed forces is to be thrown out lock, stock and barrel.
	It is extraordinary that there is such a vigorous programme of trying to bring prosecutions against members of our armed forces on the basis of a very small number of cases of abuse. That is happening to such an extent that the Judge Advocate-General made much-publicised comments last autumn when the case against soldiers from 3 Para was thrown out at the beginning of the court martial.
	The second strand of my argument relates to the specific circumstances of Iraq. Sadly, in time, al-Qaeda and others that provide plenty of networking will no doubt read across those circumstances to Afghanistan. With clause 116, the Government are essentially opening up a fresh route by which organised terrorist enemies may attack our armed forces, although they bomb and shoot our armed forces at the moment and try to set fire to their vehicles. The clause effectively guarantees that if false allegations are brought against members of our armed forces, they are bound to be considered seriously all the way up the system. Let me quote Lord Boyce again:
	The Armed Forces are under legal siege ... They are being pushed by people schooled not in operations but only in political correctness.[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1236.]
	Those are damning words indeed from an outstanding head of his profession.

Kevan Jones: As the hon. Gentleman says, Lord Boyce has spoken in another place about the legal entrapment of our armed forces. He has also written articles about the matter. When he gave evidence to the Select Committee, I asked him whether he could come up with examples of that. He said:
	I do not have any which I can give to the Committee, Chairman.
	Does the hon. Gentleman know of any factual cases, because Lord Boyce clearly does not?

Julian Brazier: I will give the Committee an example now. I have the greatest respect for the hon. Gentleman who, as a member of the Defence Committee, takes a close interest in the armed forces. I would like to be able to cite the full circumstances of the case, but I am not in a position to do so. Although several hon. Members might choose not to do so, the Committee will have to take my word that I am talking about a real case. A serving officer has given me the background facts about it, but I will have to describe it in fairly general terms because the individual victim does not want to be identified.
	The case involved a soldier who had allegations brought against him in Iraq of a serious sexual assault on a female. His immediate officer and, subsequently, commanding officer examined the allegations. The allegations were supported by witness statements that were so grossly contradictory that it was absolutely inconceivable that the Crown Prosecution Service in this country would have taken them seriously. We should remember that only a tiny proportion of even rape allegationsthe allegations were of not a rape, but a nasty sexual attackcome to court in this country. The commanding officer took the view that the allegations were clearly malicious and that it was impossible to reconcile the contradictory stories.
	We should remember that the case took place against the background of Field Marshall Lord Inge's comments that British lawyers in Iraq are actively hawking for business and reminding Iraqis that they can get money if they can bring such cases. The commanding officer was told that if he dismissed the case, another route would be found, as happened in the Trooper Williams case, and that that would merely create much more serious difficulties further down the line. The case took more than a year to come to court martial. In the process, the soldier's life fell apart, as did his marriage. We should be very worried that Field Marshall Inge, a former Chief of the Defence Staff, is saying that British lawyers in Iraq are actively hawking the fact that there is money available for Iraqi citizens who can bring successful cases against British soldiers.
	Our armed forces are under colossal pressure. We hear from week to week and month to month about members of the armed forces being killed and desperately seriously wounded. We hear of people having mental breakdowns and mental health problems, too. Those people are under colossal strain as they face a ruthless and largely invisible terrorist enemy. Effectively, we are providing a Trojan horse for an organised and extremely well-briefed enemy by removing the legal safeguard.
	In Select Committee, my hon. Friend the Member for Aldershot tried not to keep the full safeguard, but simply to put a much more modest one in its place. He won support for his amendment from Liberal Democrats and one Labour Member. There was a dead heat when there was a Division in the Committee on the matter. We cannot reopen the debate by means of an amendment today, but I hope that hon. Members will vote against the clause so that the other place may revisit the matter.

Kevan Jones: I support clause 116, the matter having been rehashed for many hours in Committee. I usually listen to the hon. Member for Canterbury (Mr. Brazier) and I have a lot respect for him, but he has fallen into the trap that, unfortunately, a lot of people have on this clause. The myths that are being perpetrated by former members of the general staff are not doing them any credit.
	The hon. Gentleman referred to Lord Boyce. I would like to take a little time to remind the Committee of exactly what he said in the Select Committee. It may be easy to say in the comfort of the Chamber or in a newspaper that our armed forces are in a legal entanglement and cannot operate anywhere because lawyers are looking over their shoulders, but I deal with facts and I have tried to find examples of cases that have been so disproportionate in their effect that it would endanger the way we operate. I have not found one yet. I will refer to the case that the hon. Gentleman mentioned in a minute.
	I pressed Lord Boyce on the issue. I asked him:
	When you were operational were you aware of any situations which hindered the chain of command? Do you know of any examples?
	He replied:
	I commanded from the age of 28, from lieutenant through every rank up to admiral, but fortunately most of my time in command was before the culture we have today started to become as pervasive and intrusive as it has done. I personally do not ever recall being troubled by that sort of compliance.
	People who know me know that I would not leave it there. I said to him:
	You have said again 'this culture that is there'... It is easy to say.
	I then asked him whether he could find any concrete examples. He replied:
	I do not have any which I can give to the Committee, Chairman. I have to say what I have is hearsay but I am aware there are lawyers out there who are looking for business and I believe encourage the sort of litigious cases that we see.
	I am sorry, but I find it very irresponsible for a former chief of staff to put forward innuendo. He could not come up with any concrete examples of our armed forces being ensnarled by legal restraint.
	I have heard that there are lawyers ambulance- chasing for cases in Iraq. I will condemn them out of hand if there are such individuals, but please come forward with examples. Lord Boyce did not do himself any favours in not being able to come up with hard facts. He relied on innuendo and, by his own admission, on hearsay.

Don Touhig: I remember the questioning that my hon. Friend pursued in Committee. Does he remember when he pressed Admiral Lord Boyce about suggestions that our forces were now risk-averse? I commend to the Committee Lord Boyce's response:
	I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are sometimes standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of that nature.

Kevan Jones: I am grateful to my hon. Friend for that intervention. I totally agree with what he has said. Lord Boyce and others need either to shut up or to come up with actual facts. They are in danger of perpetuating myths not just in newspapers but to front-line servicemen, who think that there is some constraint there when there is not. I have first-hand experience of talking to soldiers in Iraq, where that mythology is seeping through. If that is what Lord Boyce and others are doing, they are doing modern-day servicemen a great disservice.
	The hon. Member for Canterbury said that the commanding officer's right to dismiss a charge was an ancient protection and a legal safeguard. I amsorry, but I do not see it as either. I think that theclause will strengthen the role of the commanding officer.
	Commanding officers can already, if they wish, bring in the police to investigate and take advice on cases. I spoke to service police during the Select Committee's visit to Cyprus. They rightly made the point that early investigation and collection of the facts lead to less delay in ensuring that frivolous and vexatious cases do not go any furtheralthough I accept that in Iraq people are dealing with situations that are very different from incidents in a barracks here, in Germany or in Cyprus. However, I think that the clause will strengthen the role of the commanding officer in being able to draw upon the expertise of service police to ensure that the facts are kept together very early on. One of the reasons why we will never get to the bottom of what actually happened at Deepcut and those four deaths is that vital evidence was not preserved at an early stage to allow the real truth to come out.

Julian Brazier: I wonder whether the hon. Gentleman has read the explanatory notes. As the clause is quite complicated, let me give him the wording from the Government's own explanatory notes:
	a service policeman who considers that there is sufficient evidence to charge the person with a Schedule 2 offence (i.e. the most serious offences) must refer the case directly to the DSP.
	He is not allowed to go to the CO first. The word directly could not be clearer in that context. It cuts the CO right out of the loop. The case to which I referred was very much a vexatious case. The court martial dismissed it very quickly, but during the delay that took place, which would not have happened if the CO had had their way, the man's marriage fell apart and his life fell apart.

Kevan Jones: There is no excuse for delay either in a military court martial or in a civil court of law, but I disagree with the hon. Gentleman. In such cases, if the service policeman gets the evidence together and investigates the casethe one cited by the hon. Gentleman sounds very seriousand it is not thought that there is a case to prosecute, it will not get to the court martial. It may be easy to dismiss this measure flippantly, but I think that it protects the commanding officer. In the Trooper Williams case, would we have got to where we were if the evidence had been brought together at an earlier stage? I do not think so. I agree that early collection of the facts and evidence is vital in these cases to stop delay. Delay does not add to justice and it leads in some cases to the terrible outcomes to which the hon. Gentleman referred. If we do not have this measure and have a situation where a commanding officer can dismiss the case, that will leave the commanding officer open later to all types of accusations that he is covering up for his subordinates and others. I am not suggesting that that happens in any case, but they could be open to that accusation. If they have the police's evidence and involvement, it gives that protection at that stage.

David Burrowes: I know that the hon. Gentleman would wish to take an evidence-based approach. Where is the evidence that the present law is broken and should be fixed? The position was amended by Army regulations on 29 July 2004. The amendment states:
	Where a commanding officer considers that he may wish to exercise his statutory power to dismiss a charge under this provision he should first consult with his higher authority who in turn should normally seek
	other views. Where is the evidence that those regulations are broken and should be fixed? He refers to Trooper Williams, but can he refer, to cases that show that we should break with the current regulations, which seem to serve the Army well and help to retain the integrity of the commanding officer? I asked the hon. Member for Islwyn (Mr. Touhig) the same question in the Select Committee, and am still waiting for an answer.

Kevan Jones: The Bill is about updating our laws. The year 2006 is very different from 1955. Today, we are far more litigious. There are far more questions about the way things happen. The clause will ensure that a commanding officer can have confidence that once an investigation takes place, the facts will be brought together and they will be dealt with. If we do not have that, we will have more cases like that of Trooper Williams.
	There is a naivety in the press in looking at some of the Iraq cases. Having spoken to investigating officers on our visit to Iraq, I accept that it is difficult to gather evidence and information in some situations. Even in those cases, however, it protects the commanding officer and the accused if evidence is gathered early and if things are not dismissed out of hand, otherwise there could be accusations of a cover-up. Clearly, there was no such cover-up in the case that has been raised.

Patrick Mercer: I am interested in the views of the hon. Gentleman, whose sound Nottinghamshire logic shines through. It is a few years since I was a member of the armed forces, but even in my day the commanding officer would have been extremely foolish if, after a schedule 2 offence, he did not immediately refer to his senior and then call in the Royal Military Police special investigations branch. I do not know of any instance, either in barracks or on operations, in which a commanding officer did not do so.

Kevan Jones: I defer to the hon. Gentleman's experience, but that is best practice. There may be cases in which the commanding officer does not refer to his senior, so the provision provides important protection for him. Throughout our evidence-taking sessions and on our visits to establishments both in the UK and abroad, the chiefs of staff and commanding officers did not suggest that there was a serious problem. Former chiefs of staff and the Conservative party have difficulties with the proposal and there have been efforts to perpetuate the myth that the Bill interferes with the legal process and the command structure of the British armed forces. Clearly, it does not do so. As the hon. Gentleman said, I usually deal with facts, and it is important that we do not allow irresponsible comments by people who should know better to damage the Bill.

Sarah McCarthy-Fry: I concur that on our visits it was plain that this was not something about which commanding officers felt strongly. However, I was told about an incidentI think it was the Trooper Williams casein which the commanding officer acted exactly as the hon. Member for Newark (Patrick Mercer) proposed. He consulted lawyers and then decided that there was not a case to answer. That action was taken very quickly, and subsequent advice was that the original advice to the commanding officer was incorrect. By then, however, it was too late and there was no other way for the matter to be investigated, which led to the unfortunate result that Trooper Williams was prosecuted in the civilian courts, which no one wanted. That is why the protection has been included in the Bill.

Kevan Jones: I am grateful to my hon. Friend.
	The measure allows the commanding officer, in certain cases, to submit evidence and information in mitigation. There is not a problem, and we did not take any evidence from service chiefs or commanding officers, either here or abroad, to suggest that it was. Former service chiefs could not provide any examples.

Julian Brazier: The hon. Gentleman said that the commanding officer would be able to submit evidence. I accept that he could submit evidence to the court martial, but the clause rules out a compromise whereby he could submit evidence before the matter proceeds to court. The word directly makes it clear that evidence must be submitted before the commanding officer has had an opportunity to have his say.

Kevan Jones: I am sorry, but the hon. Gentleman is not correct. As I understand it, the commanding officer could submit mitigating information to the prosecuting authorities before a decision was made to proceed with a case. That would prevent circumstances that were highlighted earlier from arising.

Gerald Howarth: Where does the Bill state that?

Kevan Jones: I think that it was in the evidence that we took, and it was one of the recommendations in the final Select Committee report, to which the hon. Gentleman agreed.

Gerald Howarth: The hon. Gentleman has made an assertion that the commanding officer may make representations. Can he tell the Committee where the Bill states that? The Bill makes it perfectly clear that there is a duty on the service policeman to report to the director of service prosecutions. It is no good the hon. Gentleman looking at the reporthe should look at the Bill and tell the Committee where it makes provision for the commanding officer to make those representations.

Kevan Jones: I shall read paragraph 50 of the report to which the hon. Gentleman agreed:
	Lord Boyce advocated a requirement that the Commanding Officer write to the prosecuting authority describing the context of the incident. We debated whether it was necessary to include such an express duty or a permissive provision in the Bill. In the Standing Committee phase of our deliberations, the Minister argued that Commanding Officers were already entitled to make the relevant authorities aware of any mitigating factors, including the military context, and that a statutory provision would introduce delay into the process.
	The Committee made the following recommendation:
	We emphasise the importance of Commanding Officers exercising their responsibilities to inform the prosecuting authorities of any relevant mitigating factors and the context in which events occurred.

Don Touhig: In a debate in the Select Committee, I told the hon. Member for Aldershot (Mr. Howarth):
	Written guidance will set out the standard operating procedures under which the service police will be obliged to act.[ Official Report, Select Committee on the Armed Forces Bill, 28 March 2006; c. 78.]
	I sought to give the hon. Gentleman and his colleagues that assurance, and we did not feel that it was necessary to include it in the Bill. Guidance will be issued and it will set out the role of commanding officers and service police so that everyone is properly informed.

Kevan Jones: I am grateful for that intervention, which clarifies the position. The commanding officer will not be left out of the loop, as has been suggested by the Opposition spokesmen.

Julian Brazier: The hon. Gentleman has been generous in giving way, but that simply is not good enough. We have stripped commanding officers of a statutory power and all that has been substituted is a promise of guidance, which is not debated by Parliament and can disappear tomorrow.

Kevan Jones: I do not think that safeguards have been stripped away because, as I have said, we are bolstering and safeguarding the commanding officer's role. The hon. Member for Aldershot (Mr. Howarth) asserted that the commanding officer would be taken out of the loop completely, but I have tried to emphasise the fact that he will have input, not at court martial, but at an earlier stage when the prosecution is taken forward. My hon. Friend the Member for Islwyn (Mr. Touhig) reminded us of his promise of guidance and, in the spirit of the Bill, the Conservatives were happy that that guidance would be produced.
	I do not think for one minute that the commanding officer will be carved out of the process altogether. His role in the submission of evidence is reinforced, ensuring that we do not end up in a situation where evidence comes forward too late and cases go to court that should not do so.

Patrick Mercer: I forgot my manners earlier in failing both to welcome the Under-Secretary and to congratulate him on the excellent start that he has made.
	The hon. Member for Rhondda (Chris Bryant) made a powerful speech. He put me firmly in my place by making the point that just because someone has not served in the armed forces, that does not mean that they cannot understand them. I could not agree morethe last thing that I want to do is to try to set myself up as someone who can lecture. All that I can do is bring my rather dated knowledge to bear on our proceedings. I salute the contribution of the hon. Member for North Durham (Mr. Jones), who has spent a great deal of time on armed forces matters without any previous service experience, although I disagree with him. Briefly, clause 116 attacks important relationships at unit level across the three forces. I hope that the Committee will forgive me if I limit my remarks to the Army, because that is where my experience lies. The rank of lieutenant-colonel and its equivalent in the other forces is crucial, as commanding officers have powers at their disposal that are the acme, limit or horizon for the private soldiers, seamen and airmen who serve under them. To attack that relationship is to diminish those powers and take something terribly important away from the way our armed forces are asked to do their business.
	It is worth pausing for a moment to think about the circumstances that surround our armed forces in Iraq. It would seem that it is unique, a new theatre of operations; that counter-insurgency, counter-terrorism, peacekeepingcall it what you willare something new to our forces; and that this is not conventional war. However, precisely these conditions pertained in the 1960s and early 1970s before the armed forces got heavily involved in Northern Ireland. They were the anvil on which the Army Act 1955 was founded and subsequently amended to work at unit level.
	We have heard about the commanding officers welcoming the proposed changes to the Army Act or to military law generally. That is as may be. I was never faced with very serious crimes committed on active service, but I had some extremely difficult crimes to deal with inside barracks, and I would have loved to be able to say, Nothing to do with me, youth. You've got to go now into the military justice system and I don't have to make a decision about you, Private So-and-so. That would have been great; I would have loved it. It would have been a cop-out for me as the commanding officer. But that attacks precisely the relationship between the private soldier and the commanding officer of his unit.
	Let us bear in mind what we are talking about. The bulk of kids fighting in Iraq todaythey are kidsare aged about 18 and a half or 19. They come, for the most part, from very difficult circumstances. I was interested to hear earlier how the House regards these fine upstanding individuals and their ability to make decisions. They are fine upstanding individuals, but by golly, they come from difficult backgrounds, for the most part. It was my experience that they needed every bit of leadership, guidance and protection that their officers and non-commissioned officers could provide for them.
	That is why the regimental sergeant-major, standing outside what we called commanding officer's ordersin other words, a commanding officer acting as a magistrate inside barracks or on operationswould say to a private soldier, Are you guilty?, to which the private soldier would generally say, Of course I'm guilty. I daren't say I'm not. Clearly, that is nonsense. It was up to the commanding officer to say, as a soldier came in front of him to get summary justice, Look, son, you are now in front of a court of law. Just because you've gone through your platoon commander, your company commander and now your commanding officer, that does not mean to say that you are necessarily guilty.
	The private soldier depends on the commanding officer to be his advocate, his leader, his protector. The private soldier who is sleeping for four hours a day in two two-hour bursts, who one minute is being shot at by well-armed terrorists and the next is expected to dish out food aid or whatever to injured and hungry civilians, requires a lieutenant-colonel or his equivalent also to have had four hours sleep that day, also to be operating in conditions of 100 Fahrenheit, and also to be required to carry a 60 or 70 lb set of webbing.

Si�n Simon: I thank the hon. Gentleman for sharing with the House his experience, which is genuinely insightful. I ask this in a spirit of inquiry, rather than as any kind of rhetorical point-scoring. He spoke about a cop-out. Can he explain why the commanding officer must dispense justice, rather than just guarantee it?

Patrick Mercer: That is an extremely good intervention and a fair one. The commanding officer does not always need to dish out justice to the soldier, but he needs to examine rigorously every case before him involving any soldier, sailor or airman under his command. If he does not do so, he is failing the often simple souls who require that officer to give them that protection.
	That is what worries me so much about the idea of a service policeman being brought into the equation at such an early stage. I reiterate the point that I made to the hon. Member for North Durham. It would be a foolish commanding officer who, in the event of almost anything other than a routine offence, did not quickly get legal advice and call in the Royal Military Police special investigations branch for their guidance.

Mike Hancock: Hon. Members are right to recognise the hon. Gentleman's experience and the usefulness of it. Is he suggesting to the Committee that for the type of crimes outlined in schedule 2, a commanding officer would be able to make a judgment, after a police officera service officer or a civilianhad had time to investigate the crime? How would the commanding officer have the time and the means to carry out the sort of investigation that would be needed for some of those crimes?

Patrick Mercer: Again, that is an excellent intervention. The Trooper Williams case underlines it.
	I take the point that the hon. Member for Portsmouth, North (Sarah McCarthy-Fry) made earlier. As far as Trooper Williams was concerned, the commanding officer was his god. He was his figurehead of leadership, justice and everything that happened inside the 2nd Royal Tank Regiment. If we attack that relationship, two things happen. First, the private soldier, lance-corporal and so on, feels that there is no longer an umbrella of protection given to him by a man whom he knows personally, who, within the constraints of rank, is a personal friend, and who has probably served with his father, his uncle or other people from the same areaPortsmouth, Newark or wherever.

Kevan Jones: I am still trying to follow the hon. Gentleman's logic. If, in his experience, to which I defer, and in the experience of his colleagues, in a serious case, the commanding officer would refer to the law and bring in the SIB, what is the problem with what is being proposed?

Patrick Mercer: The problem is simple. The commanding officer must have the power to say, No. There is no case to answer. I have listened to what the legal authorities have to say, and in my judgment, as commanding officer, this soldier should not be prosecuted. This should go no further. On the other hand, he may be in a position to say, Absolutely. This is beyond my powers to deal with. Ultimately, he must have that sanction; otherwise the measure cuts away at the fundamental relationship between officer and soldier.

Kevan Jones: The hon. Gentleman has just proved my point. Is he suggesting that in a very serious case, the judge and jury, even after a police investigation, should be the commanding officer? I am not sure whether the hon. Gentleman was still a member of the Defence Committee when we considered the Deepcut deaths but is not the problem that fact that excluding independent oversight at an early stage led to problems later? If the angel commanding officers whom he describes bring in investigators and legal authorities as a matter of course, what is the problem?

Patrick Mercer: Of course commanding officers are no angels. Of course their judgment is faulty. The problem will not arise in peacetime circumstances in barracks such as Deepcut, Tidworth and so on. In those circumstances, I agree that there is time for the Royal Military Police and others to be used to the proper extent. On operations there, is no time. On operations, one is driving hard against an enemy. We are not talking about the overthrow of the Third Reich. We are talking about peacekeeping operations, where one minute, one is face to face with the enemy, at bayonet length from the enemy, and the next minute one is trying to dress his wounds and give out food to his wife. It is in those circumstances that the commanding officer must have that sanction, where he can use his judgment. If he does not, the fundamentals are attacked.
	On my second point, I ask for the Minister's earnest consideration. The Army works on the principle of mission command. A commander takes an idea, decides what he wants to do, apportions missions to his subordinates and gives them the necessary resources. Unless the subordinate says that he does not have the necessary resources, the mission is entirely up to the subordinate commander. Part of that, particularly in these circumstances, means that the subordinate commander, in this case a lieutenant-colonel, must have the legal powers to deal with his soldiers in the difficult circumstances posed by places such as Iraq. If the commanding officer cannot deal quickly, effectively and legally with the soldiers under his command, to all intents and purposes a very important strand of tactical doctrinemission commandis taken away from him.

Sarah McCarthy-Fry: I want to pick up on the hon. Gentleman's point that Trooper Williams looked to his commanding officer as his god, but the fact remains that he was let down, because he was then put into the civilian system. That is the point that this measure seeks to address. For precisely the reason that the hon. Gentleman gave about civilian judges and juries having no idea what it is like in the heat of battle, that is the last thing that we want our armed forces to have to do, as every soldier, sailor and airman to whom I spoke said. We are not talking about getting leave from barracks; we are talking about very serious offences here. The hon. Gentleman referred to snap decisions, but it is not healthy that snap decisions should be made in such serious cases, which could end up in the civilian courts.

Patrick Mercer: I agree. This sounds like a snap decision, but it is not. It will not be the sort of decision that the commanding officer takes off the cuff. We are not saying that from his tank turret he says, Yes, Trooper Williams, not guilty. Get out of it. It does not happen like that and it will never happen like that. I do just wonder though why current practices, particularly on operations, have not been enshrined in the Bill. I believe that Opposition amendments were tabled that would have enshrined what happens at the momentthat the commanding officer, as often as possible, would refer to legal authority. Why cannot such practices be introduced to the Bill, so that the important relationship between private soldier and commanding officer is not attacked?

Si�n Simon: Again in a spirit of genuine inquiry, can the hon. Gentleman give a concrete example of a case where this will go wrong? Can he give us an example of what that will look like? So far, it seems nebulous and hard to get hold of.

Patrick Mercer: I cannot, but I will hypothesise. Serving at a generally lower tempo of operations than what is going on inside Iraq, one of the warrant officers, second class, under my commandnot, I hasten to add, from my cap badge, but from the Royal Military Policeattempted to murder his interpreter in the Serb republic. As his commanding officer, the case was referred to me. I immediately understood that it was a schedule 2 case, which had to be dealt with. I could not possibly say, in the circumstances, whether I should or should not have dealt with it. I immediately passed that on to the relevant legal authority. Had we been involved in a pursuit of the enemy at that stage, had we been involved in circumstances such as those in Iraq, I would have wanted the power to hand, so that I could reassure the private soldiers and lance-corporals under my command that they would always be protected by someone whom they knew who understood the circumstances.

Kevan Jones: Is the hon. Gentleman seriously suggesting that if, in the heat of battle, someone under his command shot his interpreter, somehow it would be right for him to have the authority to dismiss that case out of hand without any investigation? I am sorry, I just do not agree with that.

Patrick Mercer: I am afraid that the hon. Gentleman has not quite understood me. What I am saying is that in a high tempo operation, where things go wrongand they willthe commanding officer must be able to carry out an investigation, take the advice that is to hand and deal with the matter as it faces him. If he does not, it will be very difficult for the private soldier under his command to continue to trust him.

Don Touhig: The hon. Gentleman has made an important contribution to the debate throughout the day from his experiences, but drawing on his experience, if at the height of an engagement there was an incident, perhaps such as the one he describes, would he not then ensure the success of the operation, the protection of his soldiers, and so on, and then get the matter investigated at a more peaceaful time when it could be thoroughly considered, rather than take a decision in the way that he seems to be implying he would take one now?

Patrick Mercer: It is a hard question to answer, but I am doing my best to answer it as honestly as I can. I have never been in circumstances where there is a pressing series of operations, one after another, against a determined enemy, with pauses out of the line where one needs to deal with this sort of discipline. But my father and my grandfather did. They faced such operations. Neither was a commanding officer, but they were infantry majors, and they felt the need to be able to use summary powers to deal with similar serious offences. That was a long time ago. I can imagine circumstances where the commanding officer at a high tempo of operations will need those powers. If I may put the point to bed, those powers are important, they will rarely be used, but when they are used, as in the case of the commanding officer of 2RTR, they should not be challenged.
	My final point is that the relationship between a regimental commander, of whatever cap badge, and the police, is always difficult. It is difficult for people who have not served to understand the feeling of the regimental family. The regimental family is the building brick upon which the army is built. No matter what assaults are being made on that system at the moment, the fact remains that the battalion, 600 to 900 men, know and understand each other. Up until the new reforms that have been introduced recently, battalions could guarantee that they all came from the same territorial area. To introduce the Royal Military Police, or their equivalent, into the chain of command at this stage is to cut away at the authority and trust that subordinate commanders have in their commanding officers. It will be a detrimental move if the Royal Military Police, or their equivalent, the service police, are used in preference to the commanding officer, who, as has been said, will always refer to the legal authorities. That injures the regimental relationship the same relationship as on a warship or an airfieldand I ask the Government to think carefully about the matter and to take it no further.

Richard Benyon: As is the way of things, my points have been eloquently made by my hon. Friends the Members for Canterbury (Mr. Brazier) and for Newark (Patrick Mercer), so I shall be brief and make just one or two further points. I am very concerned about the implications of the clause and the effect that it will have on the relationship between commanding officers and those who serve them.
	The hon. Member for North Durham (Mr. Jones) made a good point about the idea of gangs of lawyers following our forces wherever they go as part of operations being a perception that is not borne out in reality. I shall not stand here and pretend that there is an office of Matrix Chambers opening up in Basra and that our troops will constantly be harassed under human rights legislation. Nevertheless, we have to accept that we live in a much more litigious society, and our troops going on operations are daily faced with a greater threat of litigation. We know that untoward advances have been made to people in an area such as Basra and we have to be extremely careful about how we protect our forces in that context.
	Clause 116 is important in the context of alleged crimes committed by soldiers. Commanding officers understand more than anyone else the context in which an alleged offence may have occurred. I will not go through the details of the Trooper Williams case, because it was discussed at great length in Committee.

Kevan Jones: I agree with the hon. Gentleman that society has become much more litigious, which is sad, but clause 116 will protect both the commanding officer and the accused. If the special investigations branch is involved from an early stage, evidence will be gathered and the facts will be established. That means that the commanding officer cannot dismiss a serious charge, which could lead to accusations of a cover-up or make it difficult to gather evidence to establish what happened.

Richard Benyon: The hon. Gentleman has made a good point. As my hon. Friend the Member for Newark has said, however, it would be nice as a commanding officer to say, Sorry mate. You're on your own. I have no responsibility for this case, because it has been taken out of my hands. A good commanding officer will feel that his position and his relationship with the people who serve under him is diminished by that right being taken away from him. Commanding officers will not thank this House for such protection, if it is protection, because they will feel that their position has been undermined.

Si�n Simon: Is that not a little anachronistic and unrealistic? The hon. Member for Newark (Patrick Mercer) has said that, in the eyes of the private soldier, the commanding officer is God. Is that not an unrealistic burden to place on the shoulders of the commanding officer? In this day and age, is it right to say that that relationship, unless conducted between a god and a private soldier, is somehow illegitimate, and not valuable or productive? That cannot be the case, can it?

Richard Benyon: That is a burden that commanding officers are determined they should keep. They understand more than anybody the circumstances in which their soldiers are likely to find themselves, and they need to be responsible for the decisions that they make under fire or in difficult conditions, because the people involved come under their command.

Patrick Mercer: Does my hon. Friend agree that to be in command is a huge privilege? It is a burden that is gladly taken and gladly borne, and it is always respected by the private soldiers who impose it.

Richard Benyon: Absolutely. I never rose to the rank or grandeur of my hon. Friend, and my experience of the armed forces is even more dated than his. As a platoon commander in a rifle regiment on operations in Northern Ireland, I represented the views of one of my soldiers to my company commander when that soldier committed a military offence, and I stood in at the hearing at which the charge was put and a punishment was meted out. As a company second in command, I represented my company commander at hearings with the commanding officer when people under my command had committed more serious offences. Clause 116 would impose a glass ceiling, which would mean no responsibility for commanding officers if a crime is serious enough.

Si�n Simon: That is a false prospectus. The hon. Gentleman has said that there cannot be a situation in which the commanding officer is forced to say, I'm sorry son. You're on your own. That line is actually a given part of the transaction at all times. If some dodgy squaddie who has murdered an old lady turns up in the commanding officer's office and says, I'm sorry governor, I have just murdered an old lady, the commanding officer would not say, Don't worry Hughes, I will look after you. The commanding officer would say, I'm sorry son. You're on your own.

Richard Benyon: The hon. Gentleman is being unrealistic. He cannot suggest that the SIB would be not involved in such a serious case.

Don Touhig: I recognise the concerns raised by Conservative Members. When the hon. Member for Aldershot raised the matter in Select Committee on 20 March, I sought to assuage his concerns by discussing the relationship between the director of service prosecutions and the commanding officer:
	We acknowledge that in such cases a commanding officer may have valuable information that could assist the director in the tests that he must apply before proceeding to charge individuals. A commanding officer will have to be made aware of such a case, because it will affect one of his people and the operating efficiency of his unit.[ Official Report, Select Committee on the Armed Forces Bill, 28 March 2006; c. 78.]
	I went on to discuss the written guidance, which was pooh-poohed a moment ago. My point in Select Committee was that under the proposed guidance the service police would be obliged to act in a certain regard. I sought to assuage the concerns of Conservative Members by pointing out that there would be a positive and important link between the role of the commanding officer and the service police in any investigation. We cannot wipe out the role of the commanding officer in that respect.

Richard Benyon: In his former position, the hon. Gentleman tried to move towards the view advanced by my hon. Friend the Member for Aldershot (Mr. Howarth), but it is not good enough to put the point in written guidance, because it needs to be on the face of the Bill to provide the necessary security. The amendment tabled by my hon. Friend the Member for Aldershot sought to incorporate into the Bill the need for the commanding officer to be part of the process.

Julian Brazier: My hon. Friend has been confronted with the ridiculous example of someone who murdered an old lady, but there is the much more relevant example of someone who killed a young lady: Private Clegg, who shot a woman at a roadblock and was convicted because the case was tried through the civil process as murder. That judgment was overturned only after two appeals, but if the case had been considered in a military context from the beginning, it might well never have gone to court.

Richard Benyon: I could go into the case of Private Ian Thain, with whom I served in Northern Ireland, which has haunted me down the years. He was required to take a decision in the most difficult circumstances. The matter was taken out of the hands of military forces, which should have been able to protect him, and he was convicted of a murder that he did not commit. He went to prison as a criminal and served a sentence with some of the most hardened criminals in this country. That case has haunted me, and it will continue to haunt me so long as clauses such as this continue to come before this House. All I want to do is to incorporate the simplest protection into the Bill.
	Lord Boyce has been quoted more often in this debate than Lord Goldsmith has ever been quoted in the context of other legislation, and I shall quote him again:
	It is impossible to achieve and maintain the necessary level of discipline unless those under his or her command are in absolutely no doubt that their commanding officer has authority over them.[ Official Report, House of Lords, 14 July 2005;Vol. 673, c. 1235.]
	The failure to involve someone in the prosecution of a crime who understands the context of that crime puts at risk the unique relationship in our armed forces between a commanding officer and the men who serve under him.

Mike Hancock: I am surprised by the way in which the debate has gone, because hon. Members have not read the introduction to the clause, which states:
	Duty of service policemen following investigation.
	Clause 116 is all about the actions that occur after the service police or civilian police have carried out an investigation, and the list in schedule 2 covers everything from treason to murder to child abuse to child pornography. Are hon. Members really arguing that the commanding officer should be able to carry out such investigations? I would urge those Members who have not done so to read the report by the Surrey police into the events at Deepcutnot so much on the deaths of the four young people but the many examples that they gave of genuine complaints by members of our armed forces about abuse that they suffered, including serious sexual assaults, which were never investigated by the service police or by the civilian police. The Surrey police were extraordinarily critical of the chain of command that allowed such serious allegations to go unchallenged.
	I understand that when this was discussed in Committee, colleagues supported the view that the commanding officer should be informed about investigations into schedule 2 offences. I think that he has every right to be informed, but not for him then to be able to make a judgment on whether the case should be pursued. One would imagine that if a police officer, whether service or civilian, was investigating something as serious as a crime outlined in schedule 2, they would have sufficient evidence to be able to take the case further. There is clearly an obligation placed on the investigating officer that they must have substantial evidence to take the matter further.

Julian Brazier: The hon. Gentleman and I served together for a long time on the Defence Committee, and I know of his close interest in and family connections with service matters. He mentioned areas such as child pornography which are a long way away from the serviceman's job. Does he accept that in crimes such as a shooting under very difficult and uncertain circumstances, the commanding officer has an insight into that which an investigatory team, who have perhaps come out of an air-conditioned office, will not necessarily have?

Mike Hancock: I cannot imagine any set of circumstances in which a soldier, or any other service personnel member, was accused of discharging a weapon in such a way that somebody was killed or injured that would not involve the commanding officer, who could not be left out of the loop in the initial investigations that would have to take place. The problem in Iraq is that there are insufficient military policemen to be able to help our service personnel to perform some of their duties. People who have been there recently, including some of our colleagues in this House, will tell us that.
	The hon. Member for Newark (Patrick Mercer) was good enough to recognise that until 1970, the situation was governed by a different style of soldiering and chain of command. Ireland changed that because of the type of confrontation that was faced daily by our armed forces over those 30-odd years. There were always going to be very difficult circumstances when weapons were fired, people were killed and soldiers were prosecuted through the civilian courts or action was taken through the military courts. Ireland was never going to be an easy situation.
	The Bill provides a much clearer definition of the way in which these matters will be resolved. I believe that clause 116 is helpful. There was a situation in my constituency that involved naval personnel and civilian personnel working for the Navy who were all, to one degree or another, charged with offences relating to child pornography. The civilian was punished quite severely, while the service personnel were dealt with through the chain of command and virtually got away with a warning, in respect of almost identical crimes. That case has gone to the desk of the Minister, because, rightly, the civilian involved felt that he had been treated differently.
	I am not wedded to the idea that the chain of command is always right. It does not end with the Chief of the Defence Staff. There is a chain of command above thatthe political bosses at the MOD, under whichever party, who set the parameters. The Bill is not driven by the views of the Chief of the Defence Staff, but by the need to reform armed forces legislation to bring it into the 21st century and to deal with the way in which service personnel should expect to be dealt with. The chain of command is by no means perfect, as the hon. Member for Newark was generous enough to admit. It cannot be right for us to say that we are wedded to it under any circumstances. If any individual in our armed forces has a serious allegation under schedule 2 being pursued against them, there is a duty and a responsibility for that to go further, and for it not to remain in-house and within the command structure. Anything short of that would enhance the public's perception of the armed forces being treated differently, and that cannot and should not be the case. This is about is having a level playing field so that everyone clearly understands that if they are investigated for a schedule 2 offence, it will not stay in-house but will go straight to the civilian authorities or to the Crown Prosecution Service.

Kevan Jones: Does the hon. Gentleman agree that it is not just about a level playing field but about, first, giving the accused protection in terms of knowing that the alleged crime is being investigated properly and that the evidence has been gathered; and secondly, that if the prosecution goes ahead it is based on the evidence that has been collected near to where the crime was committed, whereas if the case had been dismissed and reinvestigated later on, things might have been lost?

Mike Hancock: The hon. Gentleman is right. I am sure that his remarks are borne out by the hours of evidence that he took in the Armed Forces Bill Committee and in the Defence Committee. We have had that explained to us time and again. The Minister of State, who is in his place, has a lot of credit coming his way for genuinely believingI am sure that his new boss and the former Secretary of State share the same viewthat the duty of care is to our serving personnel and to their families, as well as to the victims of crimes that are perpetrated by members of the armed forces. It is not an exclusive club whereby the military only look after their owntheir duty of care goes way beyond that. That is what this clause of this much-needed Bill gets to the heart of, and the Committee should not be prevailed upon to go along with voting against its standing part.

Patrick Mercer: I entirely agree with the hon. Gentleman that it is not an exclusive club. It has to be an organisation that is entirely visible to the outside. However, this band of brothers is called upon to do extraordinary things, and I suggest that in those extraordinary circumstances it needs extraordinary powers.

Mike Hancock: I do not disagree. Of course, this band of brothers, for want of a better phrase, does need support, but it also needs the integrity of the law that says that it will be treated it on an equal basis with the victims of any allegation that might be made against it. The public perception is that in so many of these cases the military are able to be their own judge and jury.
	The Surrey police report was a lesson that we can allow things to go unchallenged only for so long. It was a rather cosy coincidence that it was put forward so strongly that that all the issues were dealt with properly under the chain of command. It was obvious to the Surrey police that many of the men and women who gave evidence to them felt that they had been manifestly let down by the god of the commanding officer or the ability of the commanding officer to see through a fictitious allegation. Sadly, many of our armed forces men and women felt badly let down in that situation. The Bill will give them greater hope that there will be equality under the law and in the law as regards our armed forces.

Gerald Howarth: We have had an interesting and good debate. My hon. Friend the Member for Newbury (Mr. Benyon) brought passion and personal experience to it, which, along with the contribution of my hon. Friend the Member for Newark (Patrick Mercer), illuminated our discussions. They both showed that the perspective from which we must view the Bill is not that of what happens in a brawl on a Saturday night in Aldershot or Colchester, but what happens on the front line on operations.
	Our armed forces have never been so involved in operations as in recent years. We have all seen because television is there todaythe circumstances in which they fight. We therefore have a duty to examine the provision from the point of view of its impact on our armed forces on the front line. It is inevitable that we are more concerned with the Army than the other two services because of the way in which the Army fights. The Royal Air Force pilot who fires a missile will not see the enemy. Those on a naval vessel who use bombardment may not see the enemy, but the soldier does. Indeed, the soldier is often required to engage in hand-to-hand combat.
	I pay tribute to my hon. Friend the Member for Canterbury (Mr. Brazier), not only for his kind support to me but for the way in which he opened the debate a couple of hours ago. I am most grateful to him. He is right that the clause and the associated provisionswe are holding only one stand part debate, but several related clauses go to the heart of the measurerepresent the most significant change that the Bill makes to existing practice. The chain of command is at the heart of that key debate.
	The expertise of senior officers on the ground who have first-hand understanding of the conditions that their troops face has long been essential in deciding whether split-second decisions made by soldiers in danger should lead to prosecution. My hon. Friend the Member for Newbury graphically illustrated that from his experience. Until now, we trusted those in a position of command to decide whether those under their command should face prosecution for their actions while carrying out their duty in good faith. As I have said previously, the Bill removes that trust.
	Under current arrangements, commanding officers examine an incident and are informed by their knowledge of the military contextthe operational circumstancesin deciding whether there is a case to answer. Under the Bill, if an incident occurs or an accusation of a serious offence is made, the case will be passed by a service policeman directly to the service prosecuting authority for a perhaps lengthy investigation.
	In the Select Committee, I asked the hon. Member for Islwyn (Mr. Touhig) whether he could guarantee that the arrangements would not lead to more investigations that resulted in legal proceedings. He could not give me the cast-iron guarantee that I sought. Let me therefore pose the question again and perhaps the Under-Secretary can assist. Will the service prosecuting authority resemble its civilian counterpart in that it will base its decisions to prosecute on the likelihood of securing a conviction rather than on a proper understanding of the circumstances that led to the alleged event?
	Lord Boyce has been much quoted this evening. I shall quote him accurately, for the benefit of the hon. Member for North Durham (Mr. Jones). When he gave evidence to the Select Committee, he said that there was a feeling of legal encirclement among members of our armed forces. He said that the removal of the power of a commanding officer based on the facts and the situation on the ground to dismiss a charge against a serviceman risks adding to that feeling. Let me put Lord Boyce's remarks in context. He also said:
	There is a feeling of risk averseness out there now. There is a feeling of legal encirclement... It is certainly the culture of litigation and the blame culture that pervades our life today. The answer to your question is yes, I am concerned about risk averseness. There is absolutely no question in my mind that this is out there.

Kevan Jones: Will the hon. Gentleman give way?

Gerald Howarth: I shall not at this stage because the hon. Gentleman has quoted Lord Boyce enough and it is fair to put the noble Lord on the record.
	Lord Boyce also warned that tampering with military command could damage operational effectiveness. He said of a commanding officer:
	If you diminish his authority or start to erode his authority, you will have a fracture which is ultimately going to cause failure.
	That is the issue before us tonight. We must ensure that we do nothing that fractures that authority.
	After visiting those on deployment, the Select Committee concluded that there had not been much opposition in the Army to the Bill's proposed changes. Although I accept that, we must realise that the proposals in the Bill have hardly sunk in at all in the military. I do not especially blame the Government. The guys are out there trying to fight a war and they have no time to start assessing the niceties of the legal position. Although the people to whom we spoke had been briefed, I suspect that some had been briefed only a little in advance of our visit. Some of the changes will take time to make an impact.
	As has been said, the change that the Government propose results partly from the Trooper Williams case, in which the commanding officer, on legal military advice, dismissed a charge of murder against Trooper Williams, who was said to have shot an innocent Iraqi. More senior military lawyers believed that the advice was wrong, but could not reopen the case and the Army high command felt under political pressure, in the grotesque phrase that Sir Alistair Irwin used, to offer for prosecution Trooper Williams. That could be done only through the civil courts.
	Sir Alistair Irwin said that with the
	current legal, political and ginger group interest in the deaths of Iraqi civilians during Operation Telic, there is a significant possibility that this case, our investigation and the subsequent failure to offer for prosecution could become a cause clbre for pressure groups.
	I have said it before, and I repeat that I find it reprehensible that a senior officer used the expression offer for prosecution about one of the men under his command. I do not believe that Pontius Pilate would have used that expression.
	At the instigation of the Attorney-General, Williams was charged but the case was dismissed by the civilian judge. The Government argue that the removal of the power to dismiss a serious charge will prevent a repetition of the Williams case. However, the commanding officer's judgment was vindicated. The case says more about the high command and the political pressures that led to Trooper Williams being offered for prosecution than about the power of the commanding officer to dismiss a charge. I agree with the Government that we must avoid such a case in the future. I am at one with the hon. Member for Islwyn, the former Under-Secretary, that we must find a way to keep such matters in the military domain and not leave them up to civilian courts.

Kevan Jones: Does the hon. Gentleman agree that if the system for which the Bill provides had been in place at the time of the Trooper Williams case, the police evidence would have been collected early and led to an informed judgment earlier, which perhaps would not have meant the unacceptably lengthy process that he describes? If that had been done, Trooper Williams would not have gone through what he did.

Gerald Howarth: I do not agree with the hon. Gentleman. The facts prove him wrong. The commanding officer's original judgment was right. He did the right thing. He took legal advice and investigated, but some lawyer in uniform higher up thought that the advice given by the legal officer on the ground was wrong. We then had the farcewell, it was not a farce for Trooper Williams; it was a serious personal tragedy for him. It was a disgrace. We then had the disgrace of the case going through the military courts so that the high command could be absolved of failing to offer a soldier for prosecution.
	In the Select Committee, I suggested that there were ways round the problem. I suggested, as the hon. Member for Islwyn was kind enough to point out, that there were ways of dealing with it. The first option that I proposed would have given a commanding officer the power to dismiss charges, even when he would not have had the power to deal with them summarily, but would have incorporated the amendments to Queen's Regulations of 29 July 2004, which would require the commanding officer to seek the approval of his higher authority before dismissing any charge. That is the situation that prevails in Iraq today. As my hon. Friend the Member for Enfield, Southgate (Mr. Burrowes) suggested, that is the way the system works today, and I cannot see why we cannot replicate it in the Bill.
	This is a lost opportunity. I am sorry that the Government could not accede to our proposals, and I would like to put it to them again that they would reflect current practice, which appears to be working reasonably well. They would also address the problem, which we all agree must never arise again, of a charge arising from an event on operations during active service going outside the military domain and being dealt with by a civilian court that would not understand the military context. I hope that the Government will be prepared to look again at this measure in another place, particularly once they have heard the advice of the former Chief of the Defence Staff.
	In the meantime, however, I am disappointed that the Government were unable to accept the amendment that I tabled to clause 116, to which the hon. Member for Islwyn and others have already referred. My amendment would have required a service policeman investigating a charge against a member of the armed forces to inform that individual's commanding officer of any intention to refer the case to the director of service prosecutions. The amendment would also have made provision for the commanding officer to make his own representations about the case to the director of service prosecutions.
	I should like to explain to the Minister that that would have enabled the commanding officer to set the episode in the military context, so that the director of service prosecutions would have that information to hand. In a moment, I shall deal with the response that the hon. Member for Islwyn gave me in Committee, but first I want to explain this point to the Minister. I know that he is new to his post andI do not say this in a patronising sensehe has a huge amount to master. It seemed to be accepted by the Government that it was desirable that the commanding officer should have that input. We pressed the matter to a vote, and the Committee divided equally. It was only the Chairman's casting vote that enabled the Government to carry the day. However, I remain convinced that there should be a requirement that the commanding officer be informed.
	The Bill already reduces the power of a commanding officer to dismiss a serious charge against an individual under his command. However, to remove the commanding officer from the loop altogether would reduce his authority over his men yet further. We have heard powerful evidence tonight from a former commanding officer of the importance of the bond between men and their commander. The Committee would be ill advised not to recognise the force of the argument put forward by my hon. Friend the Member for Newark.
	The provision to allow a commanding officer to submit his own report once a charge had been referred to the director of service prosecutions would ensure that the assessment of the commanding officer, setting out the military context, was included in the director's assessment of whether there was a case to answer. The commanding officer would know the men under his command. He would probably have been present when the incident took place; if not, he would not have been far away. He would therefore bring not only more immediate knowledge of the military context but, most importantly, knowledge of the individual concerned.
	Will the removal of the safeguard of having the commanding officer in the decision-making process increase the chances of a serviceman being put on trial without adequate understanding of the operational circumstances? Lord Boyce said in the other place on 14 July:
	Command and discipline in the Armed Forces go absolutely hand in hand. A commanding officer, who has total responsibility for the command of his ship or unit, must, in turn, be responsible forand carry outits discipline. It is impossible to achieve and maintain the necessary level of discipline unless those under his or her command are in absolutely no doubt that their commanding officer has authority over them.[ Official Report, House of Lords, 14 July 2005; Vol. 673, c. 1235.]
	My hon. Friend the Member for Newark said that we must maintain that bond, and he was right.
	The hon. Member for North Durham has had great fun trying to suggest that the former First Sea Lord and Chief of the Defence Staff had somehow failed to provide adequate evidence to sustain his argument. I have referred to the risk-averseness that many people in the armed forces recognise. However, since the beginning of our proceedings, a document has come to light. It is headed Reinforcement of pre-deployment training in Iraq, and it was produced at the beginning of December by Major Whitelegge, who is SO2 Plans, following a survey that had been carried out among7 Armoured Brigade. It is disappointing that we were not told about its existence.
	One of the matters that the major was asked to examine was troops' reluctance to become decisively engaged when the rules of engagement clearly allowed them to do so. The findings were pretty emphatic.
	Confidence to open fire. All agreed that there was a certain British reticence to open fire, and that this was largely a positive feature at the start of an operational deployment... However, there remained a common belief that many soldiers lack the confidence to initiate opening fire when it is tactically and legally sound to do so. Reasons for this were given in the following approximate priority order:
	(a) fear of investigation. There is a widespread fear of being investigated for having opened fire, and of a protracted prosecution system that might ensue. Some believed that individual soldiers would not open fire as a result of this fear. More typically, it was felt that soldiers would open fire, but only within the strictest interpretation of the ROE...
	(b) Inconsistencies in ROE training. Throughout PDT
	that is, pre-deployment training
	units have received differing advice on what level of force is suitable in a given situation, usually due to different understandings of the imminency of the threat being faced by the soldier, or borne from experiences on other operations with different policies.

Kevan Jones: Is not this a great example of the innuendoes, half-truths and hearsay that the hon. Gentleman and Lord Boyce are peddling? This is having an effect on our armed forces that is, frankly, not very helpful. May I refer the hon. Gentleman back to Lord Boyce's response to my question? He said:
	I do not have any which I can give the Committee, Chairman.
	In other words, he did not have any factual evidence that legal encirclement had actually stopped armed forces taking part in any activities. I say to the hon. Gentleman: stop peddling this, because it is damaging our armed forces.

Gerald Howarth: I suggest that the Prime Minister give the hon. Gentleman a seat on the Front Bench as a prize for his extreme loyalty.

Don Touhig: As the hon. Gentleman knows, the Prime Minister deprived me of a seat on the Front Bench. I am, however, somewhat disappointed by his remarks. Does he recall that the Committee saw a video, which gave details of how our troops are instructed on the rules of engagement, and that we were able to ask questions of officials and people who had served on the front line, and none of the issues that he raises came up? I share the concern expressed by my hon. Friend the Member for North Durham (Mr. Jones) that this House and the other place must be careful about giving credence to half-innuendos that affect the morale of our people. It is all right for us sitting on these comfortable green Benches; we are not in Iraq tonight.

Gerald Howarth: I am grateful to the hon. Gentleman. He is absolutely right that we saw the film, which raised several questions, including that of the limitations on when servicemen can open fire. I do not want take the House through all the scenarios involved at this time of night, but I hope that he will agree that certain reservations were expressed by several hon. Members. I think that that film could be improved a great deal.

Kevan Jones: Will the hon. Gentleman give way?

Gerald Howarth: I will not do so now, as I am trying to describe something. In that film, we saw guards on a ship at night, who heard a sound, and fire was offered. They went to investigate, and the enemy took off in an inflatable and were seen disappearing. The guards were not allowed to shoot them because they were not under immediate threat. One Member raised the point that while they were not under immediate threat, the enemy might have been about to offer immediate threat to some of their fellow servicemen. This is a difficult area, and the hon. Member for Islwyn is right to raise it. A lot more work needs to be done on that.
	To return to the substance, I raised the issue of the survey because it has already gone into the public domain; extracts of it were published in  The Sunday Telegraph a couple of weeks ago. I have made inquiries among those who are currently serving, and I understand that a great effort has been made to try to encourage and build confidence among those on the front line that they might open fire with confidence. To the extent that that has been doneaccording to an insider whose word I trust implicitlyI am encouraged. I make no apology for repeating something that has already appeared in a newspaper, perhaps at greater length, as it illustrates the risk that we face if we do not back up our people, and how easy it is for them to lose the confidence that is essential if they are to be able to fight the fight on our behalf and to save their own lives. If they fail to open fire out of reticence and lose their lives, we will have betrayed and failed them, as the whole House will agree. We must get the balance of judgment right.

Julian Brazier: My hon. Friend is making a powerful speech. Several Members have put this issue in the wider context of a litigious society. May I remind him and the hon. Member for North Durham (Mr. Jones) that in introducing the Compensation Bill to deal with such wider civil effects, no one in the Government, even when saying that it is purely a matter of perceptions, ever sought to blame those in the scouting movement and other areas who have complained for somehow stirring up innuendo?

Gerald Howarth: I entirely agree with my hon. Friend.
	Time is marching on. I suspect that we will not be able to debate one of the new clauses relating to the creation of an armed forces federation. To reinforce my earlier point, let me quote from  The Sunday Times yesterday, which reported on the setting up of the British armed forces federation. It quoted Professor Richard Holmes, who is universally admired by all of us who have an interest in defence, as saying:
	Politicians control what senior officers say more than they did in the past.
	He continued:
	They simply can't say what the problems might be. Someone has to do that.
	That is his support for the armed forces federation, which I happen to be against, so I am afraid that I am on the wrong side of him on that matter. However, the report goes on to say:
	Many service members believe comrades accused of war crimes in Iraq, who were later found not guilty, were 'hung out to dry' by the government.
	That is the perception out there. I certainly do not accuse the Minister of State, whom I know extremely well, but whose constituency I cannot remember

Adam Ingram: East Kilbride, Strathaven and Lesmahagow.

Gerald Howarth: Of course. I apologise. I accept that he and his hon. Friend the Member for Islwyn are committed to the armed forces. It is, however, imperative that we understand the culture of the military, and the vital importancementioned by my hon. Friend the Member for Newarkof ensuring that our people out there feel they have the support of not just the political commanders, but the chain of command.
	The hon. Member for Islwynthe former Minister whom the Prime Minister obviously thought too old to be veterans Ministersought to assure me that there would be detailed guidance. I do not doubt his word for a moment, but let me say this to his successor. Clause 116 clearly states what happens after an investigation. It could not be more explicit; indeed, it could not be more pedantic. Subsection (2) says that if
	a service policeman considers that there is sufficient evidence to charge a person with a Schedule 2 offence
	that is, a serious offence
	he must refer the case to the Director of Service Prosecutions.
	We are absolutely clear about the role of the service policeman. It is perfectly all right to specify that in the Bill. However, we are told that it cannot be specified in the Bill that the commanding officer will be empowered both to make representations and to be told of the outcome of the service policeman's investigation.
	I am sorry, but I must insist that that is not correct. It is fine to be prescriptive about the role of the service policeman, but I do not think it acceptable to argue that we cannot be prescriptive about the role of the commanding officer. The commanding officer is central to the whole concept of the chain of command, and to the protection of the men under his command. Unless the Minister is prepared to say that he will deal with that in the other place, I am afraid that I will seek to persuade the Committee to vote against the clause.

Tom Watson: A powerful case has been put for each side of the argument. I intend to explain clause 116, and then try to deal with some of the key points that have been raised.
	The clause determines to whom a service policeman refers a case once he has investigated it. It also determines to whom a service police force refers a case that has been referred to it by a United Kingdom or overseas civilian police force. Its purpose is to ensure that the most serious or sensitive cases are referred to the service prosecuting authority.
	Subsection (2) requires a service policeman who considers that there is sufficient evidence to charge a person with a schedule 2 offencethat is, one of the most serious offencesto refer the case directly to the prosecuting authority without first passing it to the person's commanding officer. When a service policeman considers that there is sufficient evidence to charge the person with another offence in the context of circumstances prescribed by regulations, he will also have to refer the case to the prosecuting authority. When the offence is not covered by schedule 2, and no prescribed circumstances apply but the service policeman considers that there is sufficient evidence to charge the person with some other offence, subsection (3) requires that it be passed to the person's commanding officer.
	Subsection (4) requires a service policeman to consult the prosecuting authority before referring a person to his or her commanding officer if it was originally thought that a schedule 2 offence might have been committed, or that prescribed circumstances might exist. That ensures that in such a case the service police's decision on whether there are sufficient grounds for the case to be referred to the prosecuting authority will be made on the advice of the prosecuting authority.
	Many Members have raised specific points. First, let me deal with the risk-averse points. We have heard a number of quotations from Lord Boyce and various others. If I understand the argument correctly, what is being suggested is that clause 116 will create a politically correct brigade of lawyers who will be profoundly challenging to the roles played by service personnel. The argument is that personnel will be more risk-averse in the field of combat and in operations, and that they will be inhibited from operating effectively in theatre. I understand those arguments, but on reading the transcript of the debate in Committee, I wanted to test the issue for myself. Last week, I visited the Coldstream Guards and asked them whether they felt inhibited by the rules of engagement and thought that a new culture was developing in the forces. Their commanding officer afforded me time to talk to infantrymen who had been on the front line, and from their CO down I did not get that impression.

Gerald Howarth: The Coldstream Guards were based in Aldershot until last year, and they returned from Iraq after a difficult tour. Their padre is a close friend of mine. I spoke to several warrant officers in the sergeants' mess, and there is no doubt that some of them felt inhibited. I sought to say that an authority whom I regard as one of integrity told me that the position had improved, but the Minister will accept that the survey carried out on the 7th Armoured Brigade at the end of November and the beginning of December, and some of the remarks that have been made, indicate that there has been a problem.

Tom Watson: The hon. Gentleman and I will have to draw different conclusions from the conversations that we have had. That was not said to me when I was in the sergeants' mess, and when I talked to the infantrymen to test out this issue they gave no impression that they felt inhibited. I asked the commander who conducted our forces in Basra whether he felt inhibited by the rules of engagement, and he said, No, not at all. So the hon. Gentleman and I have obviously had different conversations.

Kevan Jones: I, too, visited the Coldstream Guards, and undertook other such visits relating to the Bill with the hon. Member for Aldershot (Mr. Howarth). In my four visits to Iraq and on the various visits that I undertook with the Select Committee, I did not come across anyonebe it an infantry person or someone in a more senior positionwho said that they were risk-averse in the way that has been described. Unfortunately, even when evidence is put before the hon. Gentleman, he cannot come to terms with it.

Tom Watson: The only example that I have seen of someone being prepared to go on the record on this issue is Lord Boyce.
	Let me try to reassure the hon. Member for Aldershot (Mr. Howarth) with another quotation about the rules of engagement:
	Whenever you see an armed British serviceman or woman on duty, you can be confident that they will livemaybe dieby the rules that are drilled and trained into them and which make them the most professional forces in the world. It is all about using no more force than is necessary, using firearms as a last resort and only to protect human life, only firing aimed shots, no more rounds than are necessary and taking precautions to hit only the target...Believe you me, the Army knows what it is doing. The Rules of Engagement have stood the test of time and they are right.
	Those are the words of the hon. Member for Salisbury (Robert Key), who, sadly, cannot be here tonight. They are on his website, and if I can feel reassured by those words, I hope that the hon. Member for Aldershot can.

Gerald Howarth: I think that there has been a slight misunderstanding. There is no dispute about the nature of the rules of engagement. Indeed, one of our proposals was to include them in the Bill, so that compliance with them would be sufficient protection against prosecution. There are certain issues in that regard, which I have raised with the hon. Member for Islwyn (Mr. Touhig), but the serious question is whether people will be prosecuted. Concern that they might have exceeded the rules of engagement could damage them psychologically and affect their ability to be operationally effective; at worst, it could risk their losing their lives.

Tom Watson: That concern is obviously not borne out by the hon. Member for Salisbury. The Coldstream Guards to whom I talked last week did not share it, either, so the hon. Member for Aldershot and I will have to disagree on this issue.

Julian Brazier: My hon. Friend the Member for Aldershot (Mr. Howarth) quoted the survey leaked by  The Sunday Telegraph. Does the Minister believe that that survey was properly founded? Why did that survey have to be leaked? When we had a Conservative Government, the regular surveys of a range of attitudes were available at any time on request by Members.

Tom Watson: The hon. Gentleman will know that I cannot comment on that survey. I have not seen it and, if it was leaked, we do not comment on leaked documents. However, I will try to review the press article after the debate and if I can learn something from it I will contact him.
	The hon. Member for Aldershot made several points about the role of the prosecuting authority and the commanding officer. I know that he has expressed concern that if a serious offence were alleged, it would be investigated by the service police and the case passed to the service prosecuting authority without an opportunity for the commanding officer to explain the service context to the prosecuting authority. In fact, the Bill will not substantially change the present position, which hon. Members seek to preserve. I do not underestimate the seriousness with which hon. Members have made the point, but the service police will of course be able to consult the CO.
	I shall explain why the concerns expressed, especially by the hon. Member for Canterbury (Mr. Brazier), are not founded. He said that the Bill would strip away a statutory obligation. To take the Army as an example, nothing in the Army Act 1955 provides a right for COs or higher authority to submit a report to the Army Prosecuting Authority setting out the military circumstances that prevailed. That right is covered by regulation.

Julian Brazier: We are now in a much more litigious era, with a well-briefed enemy who is clever at working out fresh ways to make life difficult for our armed forces. The Bill will change the situation from one in which the CO has the powers to dismiss charges to one in which he is merely expected to be consulted. The Minister and his predecessor have been happy to make promises on the Floor of the House, so what is stopping the Government providing the comfort of putting them in the Bill?

Tom Watson: I understand the hon. Gentleman's argumenthe has made it on three or four occasions. I shall try to answer that point. At present, there is provision in regulations for the commanding officer to submit to higher authority any information in his possession, in addition to other details, whichin his opinionmay be material to the institution of court martial or other proceedings. The higher authority is required to forward that material to the prosecuting authority when forwarding a case from the commanding officer. What use it makes of that information, if any, is entirely a matter for the prosecuting authority.
	Under the Bill, there is no prohibition on commanding officers providing the same information as they do now. They will be aware of police investigations and we would expect a similar provision to be in the regulations made under the Bill. As my hon. Friend the Member for Islwyn (Mr. Touhig) said to the Select Committee, we acknowledge that in such cases a commanding officer may have valuable information that could assist the director in the test that he must apply before proceeding to charge individuals. A commanding officer will have to be made aware of such a case, because it will affect one of his people and the operational efficiency of his unit. Written guidance will set out the standard operating procedures under which the service police will be obliged to act in that regard. Even now, the service police send daily reports to commanding officers notifying them of all cases that they have begun to investigate. Notifying them of a case that has gone directly to the prosecuting authority will be a matter of course and we do not need to legislate for that process.

Gerald Howarth: One benefit of these proceedings is that all those comments are being written into the record, but I cannot understand why the Minister and his advisers are so loth to put something prescriptive into the Bill when they are perfectly prepared to include the words:
	If an officer of a prescribed description becomes aware of circumstances of a prescribed description, he must as soon as is reasonably practicable ensure that a service police force is aware of the matter.
	Why not put on the face of the Bill that the commanding officer shall be informed of the outcome of the investigation, or that the commanding officer maypermissive, not mandatoryinform the director of service prosecutions of the military context?

Tom Watson: There is no need to include such a provision, as I shall explain. It is inconceivable that a commanding officer would not want to take up their right to submit circumstances to a prosecuting authority.
	In the remaining time available, I want to deal with some of the more detailed points that the hon. Member for Newark (Patrick Mercer) made so powerfully. He spoke of the need for powers to deal with serious offences during operations, which is probably the most serious point in our debate on these matters. Perhaps my explanation of the current situation will inform his conclusions in the Lobby later.
	UK forces developed a shooting investigation policy for high-tempo operations in Iraq that was so successful that they adopted the same model in Afghanistan. It has led to fewer but better targeted service police investigations. It allows COs to decide that there is no suggestion of an offence and to delay service police investigation until the operational tempo permits it. Nothing in the Bill is inconsistent with that procedure.
	Under the Bill, the CO will still have to make the service police aware of serious offences as soon as is possible and reasonably practicable. I hope that that assures the hon. Gentleman that we will not draw people away from high-tempo operations during important tours of duty.

Patrick Mercer: The Minister has generously answered my point, as far as it goes. I am grateful for his indication that it is at the heart of the debate, because the crux of the matter is that in operational circumstances such as those which prevailed for the 2nd Royal Tank Regiment, the case of Trooper Williams, until it was satisfactorily dealt withby the CO in that caseseriously worried the rest of the regiment and caused operational ineffectiveness. If the powers to deal with such things during high-tempo operations were stripped away from COs, it could interfere with the operational effectiveness of units at that level.

Tom Watson: If the hon. Gentleman will forgive me, I would rather not be drawn into discussion of the case of Trooper Williams, which is extremely detailed. The point that I was trying to make is that we will not be drawing people away from their immediate operational effectiveness.
	I cannot comment on individual cases, but I suspect that one feature of the case mentioned by the hon. Member for Canterbury was the delay in resolving the matter. Service chiefs and all members of the armed forces share concern about such delays. The regime that we are introducing will ensure that matters that ought to go to the prosecuting authority move far more quickly than at present. The closer relationship between the service police and the prosecuting authority should help to improve the quality of the investigation. All those factors will contribute to reducing such delays.
	The hon. Gentleman suggested that the clause would prevent service police from consulting a CO.

Julian Brazier: I did not suggest that the clause would prevent service police from consulting COs, but that it says that they should refer a case directly, which means that they could shove it on without consulting the CO.

Tom Watson: Let me explain what currently happens. The clause will not prevent any service police from consulting the CO about the case in deciding whether there is sufficient evidence of an offence before sending the case to the director of service prosecutions. Where the service context is relevant to whether an offence has been committed, the service police not only may, but should, ensure that they understand that context. However, if they decide that there is sufficient evidence, the CO should not be able to stop the DSP considering the case.
	I have tried to answer as many of the detailed points about the clause as I possibly can. Obviously, I will review  Hansard tomorrow, and if I can help hon. Members further when I have looked at it, I will. With those assurances, I vainly attempt to reassure the hon. Member for Aldershot that the clause is not worth dividing the Committee.

Gerald Howarth: I made it clear at the outset, as did my hon. Friends, that the clause goes to the heart of the Bill and reflects some of the most significant changes to our procedures under the existing individual service Acts. We have sought not only to set out some of the concerns that we feel exist, but to make the case that if the Government feel so strongly that what we are saying is already current practice, it ought to be stated in the Bill.
	I am sorry to disagree with the hon. Gentleman on his first outing as the Minister, but I feel very strongly about the issue. I have made the case in the Select Committee, I have the support of my hon. Friends, and we are disappointed that the Government feel unable to make such a change or, indeed, to offer us any possible change, not even further consideration before the Bill goes to another place. Therefore, I am afraid to saywith no personal disrespect to the Ministerthat I am not satisfied and that I will invite my right hon. and hon. Friends to vote against the clause standing part of the Bill.

The Second Deputy Chairman: Order. I am not clear whether that was an intervention.

Gerald Howarth: Sir Michael, can I help?

The Second Deputy Chairman: Order. Has the Minister finished his contribution?

Tom Watson: indicated assent.

The Second Deputy Chairman: I see.

Question put, That the clause stand part of the Bill.
	 The House divided: Ayes 323, Noes 122.

Question accordingly agreed to.
	 Clause 116 ordered to stand part of the Bill.
	 It being after Nine o'clock, The Chairman,  pursuant to Order [12 December 2005], proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
	 Clauses 117 to 163 ordered to stand part of the Bill.
	 Schedule 3 agreed to.
	 Clauses 164 to 168 ordered to stand part of the Bill.
	 Schedule 4 agreed to.
	 Clauses 169 to 180 ordered to stand part of the Bill.
	 Schedule 5 agreed to.
	 Clause 181 ordered to stand part of the Bill.
	 Schedule 6 agreed to.
	 Clauses 182 to 205 ordered to stand part of the Bill.
	 Schedule 7 agreed to.
	 Clauses 206 to 271 ordered to stand part of the Bill.
	 Schedule 8 agreed to.
	 Clauses 272 to 275 ordered to stand part of the Bill.
	 Schedule 9 agreed to.
	 Clauses 276 and 277 ordered to stand part of the Bill.
	 Schedule 10 agreed to.
	 Clauses 278 to 293 ordered to stand part of the Bill.

Clause 294
	  
	Service detention

Amendment made: No. 1, in page 147, line 19, at end insert
	'(1A) Subsection (1)(a) does not apply if
	(a) the sentence has not taken effect; or
	(b) the sentence has ceased to have effect by virtue of section 289 or 290 and has not resumed effect.'. [Huw Irranca-Davies.]
	 Clause 294, as amended, ordered to stand part of the Bill.
	 Clause 295 to 319 ordered to stand part of the Bill.
	 Schedule 11 agreed to.
	 Clauses 320 to 322 ordered to stand part of the Bill.

Clause 323
	  
	Evidential burden as respects excuses

Amendment made: No. 2, in page 162, line 12, leave out 'Parts 1 to 13' and insert
	'sections 1 to 41, 107, 228, 265 and 304'. [Huw Irranca-Davies.]
	 Clause 323, as amended, ordered to stand part of the Bill.
	 Clauses 324 to 347 ordered to stand part of the Bill.
	 Schedule 12 agreed to.
	 Clauses 348 and 349 ordered to stand part of the Bill.
	 Schedule 13 agreed to.
	 Clauses 350 to 354 ordered to stand part of the Bill.
	 Schedule 14 agreed to.
	 Clauses 355 to 363 ordered to stand part of the Bill.
	 Schedule 15 agreed to.
	 Clauses 364 to 371 ordered to stand part of the Bill.

Schedule 16
	  
	Minor and consequential amendments

Amendment made: No. 3, in page 267, line 25, at end insert
	'Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27))
	63A In Article 2 of the Rehabilitation of Offenders (Northern Ireland) Order 1978 (interpretation), in paragraph (2), in the definition of service disciplinary proceedings, after any of the following insert
	(za) any proceedings (whether or not before a court) in respect of a service offence within the meaning of the Armed Forces Act 2006 (except proceedings before a civilian court within the meaning of that Act);.
	63B In Article 4 of that Order (rehabilitation of persons dealt with in service disciplinary proceedings), after paragraph (1) insert
	(1A) Section 369(1) to (3) of the Armed Forces Act 2006 (conviction and sentence in relation to summary hearings and the SAC) apply for the purposes of this Order as they apply for the purposes of that Act.
	63C (1) Article 6 of that Order (rehabilitation periods for particular sentences) is amended as follows.
	(2) In paragraph (1)
	(a) in sub-paragraph (c) omit the and at the end;
	(b) in sub-paragraph (d) omit or a corresponding court-martial punishment;
	(c) after that sub-paragraph insert
	(e) a sentence of detention for life, or for a term exceeding thirty months, passed under section 208 of the Armed Forces Act 2006;
	(f) a sentence of detention during Her Majesty's pleasure under section 217 of that Act; and
	(g) any of the following passed as a result of any of sections 218 to 221 of that Act
	(i) a sentence of imprisonment for public protection under section 225 of the Criminal Justice Act 2003;
	(ii) a sentence of detention for public protection under section 226 of that Act;
	(iii) an extended sentence under section 227 or 228 of that Act;.
	(3) In paragraph (2)
	(a) in Table A, in the fifth entry for Any sentence of detention substitute Any sentence of service detention within the meaning of the Armed Forces Act 2006, or any sentence of detention corresponding to such a sentence,;
	(b) in Table B
	(i) in the fourth entry, after 1998 insert or under section 208 of the Armed Forces Act 2006;
	(ii) in the fifth entry, after Article 45 insert or that section 208.
	(4) After paragraph (4) insert
	(4A) Where in respect of a conviction an order under section 210 of the Armed Forces Act 2006 (detention and training order) was made, the rehabilitation period applicable to the sentence shall be
	(a) in the case of a person aged 15 or over on conviction, five years if the order was for a term exceeding six months, or three and a half years if it was for six months or less;
	(b) in the case of a person aged under 15 on conviction, a period beginning with the date of conviction and ending one year after the date on which the order ceases to have effect.
	(4B) Where in respect of a conviction a service community order under the Armed Forces Act 2006 or an overseas community order under that Act was made, the rehabilitation period applicable to the sentence shall be
	(a) in the case of a person aged 18 or over on conviction, 5 years from the date of conviction;
	(b) in the case of a person aged under 18 on conviction, two and a half years from the date of conviction or a period beginning with the date of conviction and ending when the order ceases to have effect, whichever is the longer.
	(5) In paragraph (9)
	(a) omit sub-paragraph (a);
	(b) in sub-paragraph (c) after 1998 insert or section 208 of the Armed Forces Act 2006.
	(6) After paragraph (9) insert
	(9A) In this Article
	(a) references in paragraphs (1) and (2) to section 208 of the Armed Forces Act 2006 include references to section 71A(4) of the Army Act 1955 or Air Force Act 1955 or section 43A(4) of the Naval Discipline Act 1957;
	(b) the reference in paragraph (1) to section 217 of the Armed Forces Act 2006 includes a reference to section 71A(3) of the Army Act 1955 or Air Force Act 1955 or section 43A(3) of the Naval Discipline Act 1957.
	63D In the Schedule to that Order (service disciplinary convictions referred to in Article 7(6)(bb)), after paragraph 6 add
	Provisions of the Armed Forces Act 2006
	7 Any service offence within the meaning of the Armed Forces Act 2006 except one punishable in the case of an offender aged 18 or over with imprisonment for more than two years.'. [Huw Irranca-Davies.]
	 Schedule 16, as amended, agreed to.

Schedule 17
	  
	Repeals and revocations

Amendment made: No. 4, in page 306, line 40, at end insert
	
		
			 'Rehabilitation of Offenders (Northern Ireland) Order 1978 (S.I. 1978/1908 (N.I. 27)) Article 4(5). 
			  In Article 6, in paragraph (1), the word and at the end of sub-paragraph (c), and in sub-paragraph (d) the words or a corresponding court-martial punishment, and paragraph (9)(a).'. 
		
	
	 Schedule 17, as amended, agreed to.
	 Clauses 372 to 378 ordered to stand part of the Bill.
	 Bill reported, with amendments.
	 Order for Third Reading read.

Tom Watson: I beg to move, That the Bill be now read the Third time.
	I am delighted and slightly relieved to stand at the Dispatch Box this evening with the task of sending the Bill on its way to another place. I should like to pay sincere tribute to my hon. Friend the Member for Islwyn (Mr. Touhig), who was responsible for introducing the Bill. He is a great parliamentarian and a good friend. His deep regard and support for the armed forces are well respected by Members on both sides of the House. His open and consensual approach to the Bill, which helped the Select Committee to conduct its businesses effectively, were widely welcomed. I am indebted to him, and I am very grateful indeed for his authoritative and constructive contribution to our debate. On a personal note, I thank him for the support that he has given me.
	I pay tribute to members of the Select Committee, which was chaired by my right hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth). Many of them have made sincere contributions today with the common purpose of ensuring that we introduce legislation that can better meet the needs of the 21st century. The hon. Member for Aldershot (Mr. Howarth) has been gracious to me on my first run-outI am sure that he could have been harder. He mentioned his former colleague and very good friend, Eric Forth. I remember Eric with admiration, having been a Friday Whip before assuming my new role. One thing that Eric pioneered was in-flight refuelling during debate. Some of my hon. Friends have been good at in-flight refuelling this afternoon. I will not name them, but they have my grateful thanks.
	I am sure the House will join me in sending good wishes for a speedy recovery to the hon. Member for Salisbury (Robert Key), who cannot be with us this evening. He served on the Select Committee on the Bill, and made a significant contribution to it.
	I place on record my thanks to the staff of my new private office, and the Bill team in particular, who did not quite take away the sleepless nights, but they helped with detailed briefings throughout the afternoon. They know what they did and, if it is not out of order, I offer them a small drink after the debate.
	We have had a good debate. I shall not cover old ground, but I shall mention my hon. Friend the Member for Leyton and Wanstead (Harry Cohen). We crossed swords for a couple of hours, especially over what constituted the definition of an enemy. Never has Churchill's quote been so validenemy behind, opposition in front. My hon. Friend may have defined his enemy this afternoon, but I hope he will be my friend at the end of the debate.
	Although my time as Minister responsible for the Bill has been brief, it falls to me to mark an important stage in its progress. I will not detain the House unduly, but I shall say a few words about the Bill. It is a good Bill.

Joan Humble: My hon. Friend spoke a moment ago about going over old ground. May I ask him to cover some new ground? He will be studying the review by Nicholas Blake QC of the events at Deepcut. A key recommendation from Nicholas Blake is the establishment of an armed forces ombudsman. Perhaps as the debate on the Bill continues in another place, my hon. Friend will consider that important recommendation to make sure that the Bill deals with all the concerns that people have about the armed forces.

Tom Watson: I understand the point that my hon. Friend makes. She concerns herself in great detail with the Bill. We take the Blake review extremely seriously. Although I am new in the position, the Department hopes to respond shortly. I am sure my hon. Friend will have an opportunity to express her views in her usual way.

Lembit �pik: I do not wish to detain the Minister, but he will accept that the hon. Lady's view is shared on a cross-party basis? The parents of those who lost their offspring at Deepcut Army barracks will feel disappointed that on Report the Minister and others did not get to discuss the recommendations of the Blake inquiry. Can he give the House an assurance that he takes the concerns of the parents seriously, and that there will be continuing discussion to see if we can bring about closure for the parents, albeit with the possible revelation of some as yet undisclosed reports?

Tom Watson: I share the hon. Gentleman's disappointment. The matter is serious and will not go away at the end of the evening. I take his point on board.
	The Bill marks an historic change for the armed forces. In a sense, the most important test of its value is the support that it has from the armed forces. The services have been central to the development of the Bill. The clear modern drafting is a testament to the skills of parliamentary counsel. The chiefs of staff, commanding officers and men and women of all ranks have supported the Bill.
	It is right that we should replace the three service discipline Actsthe Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957which provided the legal basis for service discipline for so many years. Importantly, when enacted the Bill will deliver the undertaking that the Government gave in 1998 in their strategic defence review to introduce a single system of service law. Under this legislation, for the first time, we will have a single system that will apply to all three services at all times and wherever they are in the world; nor should we forget the civilians who accompany them overseas.
	The Bill recognises a world in which the three services increasingly train and operate together, but equally it will underpin the maintenance of discipline through the chain of command that is so fundamental to the operational effectiveness of our armed forces in which we all take such pride. We have listened to Members and made some sensible amendments. This is still work in progress, as we have said. The Government will take the opportunity during the Bill's passage in another place to bring forward any further amendments to ensure that we give the armed forces the best possible system that we can.

Gerald Howarth: I join the Minister in thanking those who have contributed over the last four or five months to our deliberations on these matters. It is true that the Bill team has been working even longer;I think for 18 months. I should remind the House that when the House last debated this matter in 1955, the Select Committee took two years. I hope that the Minister will acknowledge that hon. Members on both sides of the Select Committee have undertaken in four or five months that which our predecessor Committee in the 1950s took two years to undertake. That seems like a productivity enhancement to me.
	I should also like to pay tribute, as I have done already, to the hon. Member for Islwyn (Mr. Touhig) for all the help behind the scenes that he gave, and to the Minister I am bound to say, A very good opening performance, and I hope that he will take some confidence from that. I also hope that he will accept that he has one of the best jobs in the Government in representing and acting on behalf of some of the finest men and women in our country.
	You, Mr. Deputy Speaker, said that consideration had now been completed, but consideration of the Bill has not been completed. We have not been able to discuss a number of amendments. The hon. Member for Blackpool, North and Fleetwood (Mrs. Humble) had tabled a new clause about an ombudsman that we were unable to discuss, and we had some concerns over service panels and the make-up of the court martial panels. We also had a concern that the director of service prosecutions must have a military background, and there were other issues as well. So unfortunately we will bid the Bill farewell to another place not fully considered here, and I hope that some of those points will be taken up there.
	One of the most important points about the Bill is the way in which it has been considered. The Select Committee procedure has been hugely beneficial, and the Committee so found in its report and recommended that the Government should consider applying the technique to other Bills. I have no doubt, seeing in her place the hon. Member for Portsmouth, North (Sarah McCarthy-Fry), who participated assiduously in our proceedings, that it was extremely beneficial to all of us, however much experience we had of the military. We all took away a huge amount from the opportunity of being able to cross-examine people before us and make the visits. The Committee was better informed as a result. We may not all have heard the same things or interpreted what we heard in quite the same way, but the fact that we made those visits and held those proceedings was beneficial.
	It was always difficult for the Opposition given that the service chiefs had all signed up to the legislation. It ill behoves an acting pilot officer to question the Chief of the Air Staff, let alone the Chief of the Defence Staff, about whether he has got it right or not, but I would be quite interested to know in exactly how much detail each of the defence chiefs read the legislation.
	As I have said, the Opposition's approach was to look at the Bill from the point of view of how it will affect our armed forces on the front line, not so much how they will deal with discipline at home in Aldershot or Colchester. The debate about the chain of command and the power of commanding officers illustrated our genuine concerns about the administration of discipline, particularly where servicemen and women are felt to have acted outside the rules of engagement.
	It is good news that the Government have accepted the need for annual renewal. I thank the hon. Member for Islwyn for having acceded to that change, which is incorporated in the Bill. That welcome provision will give the House an opportunity to revisit how the changes are bedding down.
	The Minister has referred to the Bill's tri-service nature, which is widely accepted as being the desirable way to go. However, one of the things that came out of our visits to Cyprus, Oman and Iraq is that each of the armed forces fights differently and has an individual ethos. Paragraph 39 on page 13 of the Committee's report makes the important point that
	The way each Service fights is different and the Bill needs to accommodate those differences.
	We want to see everything in terms of joint operations, but that is not necessarily the case, because, as an old boy has said, many sailors will never work alongside a soldier or airman throughout their whole military career. Some of those differences came out during our visits, and I hope that the Minister will reflect on how the Bill can be made to fit the individual service ethosthe desire of the chiefs to make the default position on courts martial panels single service is a good starting point.
	The Opposition have also taken the view that this body of military law is essential. We agree with the Judge Advocate General that the military should be governed by completely different law from that which applies to civilians. I hope that we have managed to accommodate the changes to civilian law to the extent that they will not damage the operational effectiveness of the armed forces.
	As a sideswipe at the European convention on human rights, I was concerned to be told during our proceedings in Select Committee that although the Bill is compatible with the ECHR, that is no bar to further challenges. I personally take the view that the European Court of Human Rights should have nothing to do with how the United Kingdom disposes of its armed forces. The protection of the members of our armed forces and their arrangements should be exclusively a matter for this Parliament and not for some court composed of a collection of foreigners. I feel very strongly about that matter.
	The test which we must apply to our deliberations over the past few months is whether we have provided our armed forces with a legal framework that will do them the justice that they undoubtedly deserve. There is not an hon. Member in this House, even among those who have spoken against the war in Iraq, who has anything other than unbounded admiration for our armed forces, and I hope that we have fashioned a law that will help them, protect them and enable them to do their magnificent work on behalf of the entire nation.
	I shall conclude with the military covenant, which is quoted on page 6 of our report and which sets out the Army's doctrine:
	Soldiers differ from civilian employees because success in military operations, when the price of failure may be death, requires the subordination of the rights of the individual to the needs of the task and the team, albeit within a legal framework.
	I hope that we have discharged our responsibility to the men and women of our armed forces to their satisfaction.

Don Touhig: I know the Armed Forces Bill as an old friend, having taken it through its Committee stages with a number of colleagues. In rising to speak from the Back Benches, I feel a little like the ghost of Christmas past.
	Let me begin by congratulating my hon. Friend the Under-Secretary on his appointment. I know that he will do an excellent job. I am sure that Members on both sides of the House will agree that having come into the job at such short notice he has done a very good job during today's debate. While I pass on the baton of Veterans Minister with considerable regret, I am happy to hand over to my hon. Friend some of the work in the red boxes. I am grateful to him and to other Members for their kind comments about my time as Minister, particularly so far as this Bill is concerned. I am conscious that the first contribution from a recently retired Minister may at times be an uncomfortable experience for those on the Front Bench, but I can put my hon. Friends at ease. I will enjoy my freedom from the security of collective responsibility by making it plain that I wholeheartedly support the Bill.
	With the strategic defence review in 1998, the Government recognised that we needed a single system of service law for today's armed forces. Our forces increasingly train and operate together, and they need a modern system of justice that reflects that. The Bill is the result of years of hard and dedicated work, and the services themselves have been at the centre of its development. Indeed, my right hon. Friend the former Secretary of State for Defence said on Second Reading that this is a Bill that has at its centre the armed forces themselves. In that sense, it is a Bill for the armed forces. It has their full support, primarily because it meets their needs in a way that has been absent for some time.
	I turn to the way in which the Bill has been handled, as referred to by the hon. Member for Aldershot (Mr. Howarth). I should like to add my thanks to the Bill team for their professional and dedicated support. When I was Minister, I knew at first hand that they did a tremendous job and that that was not often recognised enough. The special Select Committee procedure is a regular feature of the quinquennial review of service discipline. As has been demonstrated, it has been an outstandingly successful arrangement for the House. The evidence taken by the Committee, in what we might term the Select Committee stage, gave Members the opportunity better to understand the purposes behind the Bill.
	The combination of that expert testimony and line-by-line scrutiny in Committee means that this Bill has been considered in a far greater depth than many others. I pay tribute to my right hon. Friend the Member for Knowsley, North and Sefton, East (Mr. Howarth), who chaired the Committee with his customary blend of patience and purpose. He was ably assisted by the hon. Member for Salisbury (Robert Key), who has served on several special Select Committees considering service legislation. Indeed, his experience led me at one stage to consider asking him to join the Bill team, because I thought that he would make a considerable contribution. I join with all Members in wishing him a speedy recovery and return to the House.
	In Committee and in the early debates in the House and today, as well as in the media, I fear that we have heard a great deal of nonsense about our armed forces being under some sort of legal siege that is affecting the chain of command and blighting operational effectiveness. To me, legal siege is a loose, vague, woolly and wholly misleading term. As a concept it lacks intellectual rigour, and as a description it lacks a grounding in fact. I do not mean to say that certain perceptions do not exist in some quarters, although when reading some of the newspaper reports I am reminded of Nye Bevan, who, when asked whether he read the newspapers, said that of course he did because it was his one continuous source of fiction.
	I consider the so-called legal siege to be a mirage. The former Chief of the Defence Staff, the noble and gallant Lord Boyce, who has been much quoted today, could not give a single real example of how this intangible concept is supposedly affecting operational effectiveness. During the Select Committee stage, when asked by my hon. Friend the Member for North Durham (Mr. Jones), the then Chief of the Defence Staff, General Sir Michael Walker, gave the same reply:
	If you ask me to give you a physical concrete example, I cannot.
	I would remind Members of some wise words that we heard in the Committee's hearings, which I quoted earlier:
	I am sure that we all could play a better role in trying to dampen down this particular worry, and people like myself who are standing up and speaking in the House of Lords debates and so forth perhaps need to re-look at how we are saying things in order not to fuel anxieties of this nature.
	Those were the words of Admiral Lord Boyce himself, and I was grateful for his candour when he gave us that evidence in Committee.
	Perception stems from what is said in this place and in the press. If it is said often enough, it becomes a self-fulfilling prophecy. Membersof this House and the other placeshould be more temperate in their comments, otherwise they feed a perception that undermines the morale of our forces.
	We have had much discussion in Standing Committee and this evening on the role of commanding officer. I should like to conclude by making it plain that the Bill has the support of the forces and that the changes that we are making to the role of the commanding officer will be supported and welcomed. Indeed, many of our forces have welcomed the removal of the power to dismiss serious charges. I have a high regard for General Sir Mike Jackson, and he put it perfectly:
	As far as the Army is concerned, I would echo the fundamental place of the Commanding Officer in holding good order and military discipline and we are content that the new Bill secures that position. There have been changes but they are not changes which we think in any way are significantly detrimental to that pole position which we would wish the Commanding Officer to hold.
	I subscribe to his remarks.
	When we considered harmonising the powers of commanding officers, naval captains had perhaps most to lose. It was once said of the Navy in Nelson's time that on board ship, the captain was second only to God, and that was only a matter of seniority. The Bill updates powers in the age of e-mail and satellite communications, and the then First Sea Lord made it clear when he gave evidence to our Committee that he was entirely happy with what has been retained. The changes in the Bill allow commanding officers to get on with what they do best: commanding, training and looking after the men and women under their command.
	As I said on Second Reading, we place an enormous responsibility on the shoulders of our servicemen and women. We ask them to operate in circumstances that are often difficult, unpredictable and dangerous. We ask them to perform tasks that have no parallel in the civilian world. When young men and women sign on to serve in our armed forces, they know that they may face circumstances in which they put their lives on the line. That does not happen to those who join Barclays bank or Tesco. It is the peculiar and special position of those who join our armed forces. Sometimes, they make the ultimate sacrifice. We have again recently mourned the deaths of our young servicemen and women in Iraq.
	Parliament and the armed forces demand high standards of behaviour from our forces, whether overseas on operations or training at home. Discipline is essential and service law is essential to enforce it. Ultimately we all want an effective and efficient fighting force.
	There is no doubt that we need a separate system of law for the armed forces and that it needs to reflect the increasingly joint nature of their work. The Bill delivers that. The forces want the measure. It will provide strong legislation for service discipline in the 21st century. I hope that it will have the wholehearted support of the other place and that it will soon be on the statute book.

Bob Russell: I pay tribute to the hon. Member for Islwyn (Mr. Touhig) for his past service as Under-Secretary. I believe that the Prime Minister has treated him shabbily by taking away the job after he piloted the Bill almost to the finishing post. It is something when one is deemed, at 58, to be too old to be the Veterans Minister. However, I warmly welcome his replacement, the hon. Member for West Bromwich, East (Mr. Watson). As has been said, he performed spectacularly tonight and I wish him well in the future.
	We welcome the Bill. It has been a long haul and it now goes to the other place, where there will be an opportunity to do the fine tuning that perhaps some people feel is still required. I join other speakers in thanking the Bill Committee team for all their work in briefing hon. Members and helping them through the various Committee stages. I say various because it is the first time that I have served on a Committee that evolved in such a way, through Standing and Select Committee structures. I found it very useful and informative, and I hope that it will become the pattern for future Bills.
	The Bill will bring about the harmonisation of military disciplinary matters going back decades, if not centuries. It is not only the armed forces discipline Acts of 1955 and 1957half a century agothat are being updated. Certain measures go right back to the 19th century. It is right that, in the third millennium, we should have disciplinary procedures for the military that are fit for purpose, and that reflect the changing times and the increasing tendency for our armed forces to be on joint deployment, as we found when we visited British troops in Oman, Cyprus and Iraq as part of our investigation. I was impressed to see in Cyprus, for example, the military police from all three services working successfully as a single unit. In Iraq, we met helicopter pilots drawn from the RAF, the Army and the Navy working as a single unit. Joint deployment must not take away from the fact that each service has a special ethos, however. A naval helicopter pilot, for example, needs training and disciplines in maritime conditions, whereas those in the Armysuch as those in 16 Air Assault Brigade from Colchesterneed to operate rapid attack helicopters to get troops in at low level.
	I was delighted that, in addition to visiting Iraq, Cyprus and Oman, the Committee had the good sense to visit the military corrective training centre at Colchester. It sets an example that the prison service could follow, in that it provides a good way of training young menand, occasionally, young womenwho have committed misdemeanours but who are nevertheless an important part of the military, and of getting them back into military service.
	It is a special privilege to represent a garrison town, and I am particularly interested in the welfare of military discipline matters. We have heard a lot today about the command structure. In our garrison towns, we have garrison commanders. However, by the end of the year they will no longer be there, because the reconfiguration will result in brigade commanders taking over the role. I discovered that yesterday, and I also found, to my horror, that Colchester's garrison commander, Colonel Tony Barton, will no longer be there. In fact, he is leaving the service because he feels that he is being forced out. That cannot be right, because garrison commanders are all part of the chain of command, and garrison boundaries and brigade commanders' boundaries are not always coterminous. I foresee problems arising from this change.
	I would like the Minister to comment on another matter, which I have raised in Committee. It is the potential conflict between Ministry of Defence police and the civilian police as a result of the growing tendency, following the forced privatisation of married quarters by the previous Tory Government, to sell the houses on. There is now uncertainty on one Army estate in Colchester as to what is military and what is civilian, and whether the MOD police or the civilian police should prevail. I am sure that the problem can be worked out, but it does need to be addressed.
	I am disappointed that our debate today dragged on in the way that it did, because it meant that we did not reach the amendment tabled by the hon. Member for Thurrock (Andrew Mackinlay). However, I hope that his proposal will come back at another time in another place.
	Will the Minister also confirm in his summing up that the disciplinary procedures will apply to the Gurkhas serving in the British Army? I mention that because I want to put on record that the United British Gurkhas Ex-servicemen's Association from Nepal presented a petition at No. 10 Downing street today about the injustices and unfairness suffered by those veterans. I hope that the Minister will confirm that today's Gurkhas will be treated on equal terms with the rest of the British Army.
	One interesting aspect of military discipline that was new to all of us on the Committee was AGAI 67it is just as well that the number was not two more than that. Anyway, it stands for Army general and administrative instructions, which are low-level disciplinary procedures that can be carried out by sergeants and corporals as a form of immediate disciplinary action. I understand that the Bill will enable the Royal Navy and Royal Air Force also to introduce AGAI 67 minor sanctions.
	The Liberal Democrats support the Bill. It is important, however, that the ethos of the different services and the distinctiveness of the Army, Navy and Air Force are maintained and retained while at the same time harmonising disciplinary procedures, especially when we have joint deployments. I wish the Minister well as he takes the Bill through the House.

Joan Humble: Like other Members, I want to compliment both the former and current Minister and the whole team involved in this important Bill. However, the legislation must not only satisfy the needs of the armed forces but the needs of families who, sadly, have lost children serving in the armed forces and in peacetime barracks. They, too, are looking for answers in the Bill.
	The experience of Army life is of immense benefit to the overwhelming majority of young men and women able to take advantage of that career. At the same time, young soldiers are in a vulnerable position. Service life requires strict discipline and a tough regime. Sometimes, however, discipline and toughness become bullying and harassment. Our task is to minimise the opportunities for that to happen, and when it does, to provide a ready source of remedy to those so abused and harassed.
	I referred earlier to Nicholas Blake QC, who undertook the inquiry into the deaths at Deepcut. Like him, I do not believe that the current proposals in the Bill go far enough to ensure independent supervision and review of the discipline and complaints system. Like him, I believe that there is
	a danger that an historic opportunity will be lost for the Armed Forces to obtain independent assistance to achieve the goals they have set themselves to ensure the welfare of trainees and soldiers is effectively addressed.
	I, too, believe that the
	establishment of the office of a 'Commissioner of Military Complaints' is now an essential step in improving confidence, transparency and justice.
	Regrettably, we did not have an opportunity to examine in detail new clause 4. When my hon. Friend the Minister considers the detail of the 34 recommendations that Nicholas Blake put forward, I urge him to consider especially his recommendation for an independent armed forces ombudsmansomeone who is genuinely independent and has power to investigate complaints.

Jim Dobbin: Is my hon. Friend aware that my constituent, Norma Langford, whose son, Corporal Ian Holt, died in Belize on non-combat duty in 1991, would be thrilled were such an independent inspectorate set up? At present, such investigations are usually left to the special investigation branch of the military police. She would like the whole system to be open and transparent.

Joan Humble: As chair of the all-party group on Army deaths, I have met my hon. Friend's constituent when she has attended meetings of the Deepcut and Beyond families group at Westminster. One of the most important things that I and other members of that group do is to meet families who have lost their loved ones. I am sure that Mrs. Langford would be pleased were such an armed forces commissioner and ombudsman set up.
	I also advise my hon. Friend the Minister that Nicholas Blake says in his report that he has informally discussed the possible role of such a commissioner with commanding officers and others, and has understood that there is no objection in principle or practice to such independent oversight of the system, and nor is there concern that it will undermine military discipline. In further debate on this excellent Bill, I urge my hon. Friend to make it even better than it already is by introducing exactly such a system of independent oversight.

Sarah McCarthy-Fry: I welcome the Minister to his new role. I think that, given his performance today, he will be a formidable addition to the Defence team. I also welcome the process by which the Bill was examined. We went through reams of written evidence in the Select Committee, and also had an opportunity to examine witnesses. For me, however, one of the most important parts of the process was the Committee's visit to Cyprus, Oman and Iraq, where we were able to speak to the guys and girls on the ground who would be influenced by and subject to the Bill.
	We ask our armed forces to operate in dangerous places and we ask them to put their lives at risk, so it is obvious that they must obey orders from their commanding officers. It emerged clearly today that we cannot allow people to operate like maverick loners. I think that the best way to prevent that is to foster team work, and to make a joint commitment to a common goal. Team work is much more likely to be generated by trust, transparency and openness than by operation as a secret closed group.
	Two issues became very clear to me as we debated the Bill. One was the removal of the power of the commanding officer to dismiss a case, which has been much debated this evening. It was also discussed extensively with serving personnel during our visits. I do not accept that it damages the chain of command; I think that it enhances the reputation of our armed services. It represents a willingness not just to ensure that serious cases are investigated properly but to ensure that they are seen to be investigated properly, so that our armed services are held in the high esteem that we know they deserve, not just in this country but on the world stage.
	The second issue is the duty of care and redress of complaints, mentioned by my hon. Friend the Member for Blackpool, North and Fleetwood (Mrs. Humble). We want our young people to choose the armed services as a valued career path where their capabilities will be stretched and their mettle will be tested, but where there is also a duty of care and an open and transparent redress procedure.
	I represent a city with a long and proud history of its sons and daughters going to sea to defend our shores in armed service. I have a vested interest in ensuring the safety and security of my constituency, which in the past has been a military target, and in ensuring that my country is protected by an effective and professional armed service. However, I also have an interest in ensuring that individual serving soldiers, sailors and airmen are protected by a duty of care, and that potential recruits are not deterred by the perception of a bullying culture or complaints hidden under the carpet.
	Despite the omission of an independent commissioner, which I hope will be discussed again when the Bill goes to another place, I believe that the Bill brings service discipline up to date. It reflects the modern worldthe very different threats that face us and our armed services and the highly visible theatre in which they now operate, with embedded journalists and images posted on websites and television stations. I am grateful for the opportunity to participate in the Bill's progress, and I hope that every Member will support it this evening.
	 Question put and agreed to.
	 Bill accordingly read the Third time, and passed.

DELEGATED LEGISLATION

Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

Income Tax

That the draft Tax Information Exchange Agreement (Taxes on Income) (Gibraltar) Order 2006, which was laid before this House on 20th April, be approved.  [Huw Irranca-Davies.]
	 Question agreed to.

Mr. Speaker: It may be convenient to take motions Nos. 3 and 4 together.
	 Motion made, and Question put forthwith, pursuant to Standing Order No. 118(6) (Standing Committees on Delegated Legislation),

Income Tax

That an humble Address be presented to Her Majesty, praying that the Double Taxation Relief (Taxes on Income) (Botswana) Order 2006 be made in the form of the draft laid before this House on 20th April.
	That an humble Address be presented to Her Majesty, praying that the Double Taxation Relief (Taxes on Income) (Japan) Order 2006 be made in the form of the draft laid before this House on 20th April. [Huw Irranca-Davies.]
	 Question agreed to.
	 Motion made, and Question put forthwith pursuant to Standing Order No. 118(6)(Standing Committees on Delegated Legislation),

Electronic Communications

That the draft Wireless Telegraphy (Pre-Consolidation Amendment) Order 2006, which was laid before this House on 27th April, be approved. [Huw Irranca-Davies.]
	 Question agreed to.

EUROPEAN UNION DOCUMENTS

Motion made, and Question put forthwith, pursuant to Standing Order No. 119(9) (European Standing Committees),

Internal Market for Services

That this House takes note of European Union Document No. 8413/06, Commission Communication: Amended Draft Directive on Services in the Internal Market; and supports the Government's approach to securing practical and proportionate legislation that promotes economic growth, competitiveness and job creation within the context of an Internal Market for Services. [Huw Irranca-Davies.]
	 Question agreed to.

DELEGATED LEGISLATION

Ordered,
	That the Welfare of Animals (Slaughter or Killing) (Amendment) (England) Regulations 2006 (S.I., 2006, No. 1200), dated 28th April 2006 be referred to a Standing Committee on Delegated Legislation. [Huw Irranca-Davies.]

COMMITTEES

Mr. Speaker: It may be convenient to take motions Nos. 8, 9 and 10 together.
	 Ordered,

public accounts

That Mr Alistair Carmichael be discharged from the Public Accounts Committee and Dr John Pugh be added.

Education and Skills

That Tim Farron be discharged from the Education and Skills Committee and Paul Holmes be added.

Environmental Audit

That Lynne Featherstone be discharged from the Environmental Audit Committee and Tim Farron be added.  [Rosemary McKenna, on behalf of the Committee of Selection.]

GUANTANAMO BAY

Motion made, and Question proposed, That this House do now adjourn. [Huw Irranca-Davies.]

Keith Vaz: I want to thank you, Mr. Speaker, for allowing me the opportunity to discuss detention without trial at Guantanamo Bay. I am pleased to see the Minister for the Middle East, my hon. Friend the Member for Pontypridd (Dr. Howells), on the Front Bench tonight, and I am glad that so many other Members of the House have taken such a strong interest in this subject. I am particularly pleased to see my hon. Friend the Member for Tooting (Mr. Khan) here, and I know that my hon. Friend the Member for Hackney, North and Stoke Newington (Ms Abbott) hopes to join us later.
	This is the fourth such debate to be held in the four years since the detention facility was established in early 2002, and the first since the release of the remaining British citizens a year ago. It takes place at an appropriate timeon the back of recent comments made by my right hon. and learned Friend Lord Goldsmith, the Attorney-General, and of the publication last Friday, just in time for this debate, of the United Nations convention against torture's critical report on Guantanamo.
	Also on Friday, I was sorry to hear of reports by the BBC and other news agencies that four detainees attempted to commit suicide, and that the efforts of prison guards to stop those attempts were met by violent resistance from other inmates. Sadly, it now appears that prolonged exposure to the conditions within the facility have caused the inmates to look to suicide as the only alternative. With that in mind, the recent speech of the Attorney-General deserves even greater consideration.
	On 10 May, the Attorney-General used a speech to the Royal United Services Institute to make clear his opposition to the continued detention without fair trial of those imprisoned at Guantanamo Bay. Lord Goldsmith stated that the camp should be closed
	as a matter of principle.
	Although he made it clear that on this issue he was speaking in a personal capacity, as he is one of this country's foremost and most respected legal expertsand, indeed, the Government's chief legal adviserhis speech's significance cannot be underestimated. We all know of his intellectual prowess and determination. When he spoke, he meant what he said.
	The Attorney-General's opinion is the most recent development concerning this subject. On 17 February, the Secretary of State for Northern Ireland and for Wales, my right hon. Friend the Member for Neath (Mr. Hain), said that he would like to see the camp at Guantanamo Bay closed. Our Prime Minister, who has fostered an excellent relationship with the United States, has gone so far as to call the detention centre an anomalya view that he repeated at Question Time last week. Those three statements clearly reveal that the Government have not yet developed a coherent position on how the current situation should be resolved. Now is an excellent time for them to make such a statement.
	Only two weeks ago, President Bush, during a visit to the United States by Chancellor Angela Merkel, stated his desire to end detention at Guantanamo and to get the detainees into court. As everyone appears concerned, why is Guantanamo still open? The opinion of such figures clearly shows that the arguments about what has become known as Camp X-Ray are progressing in the same direction. Guantanamo cannot continue. Detention without trial at Guantanamo is not a necessary part of the global fight against extremism and fundamentalismalso known as the war against terrorism. Rather, it is counter-productive to the efforts of the international community.
	The tragic events of 11 September clearly demonstrated how vulnerable open and democratic societies are to the threat of organised terrorist networks. The subsequent military campaign in Afghanistanfully supported by this Government, NATO and the United Nationsresulted in individuals suspected of belonging to the al-Qaeda network being captured by the American military forces. More than 600 of these alleged terrorists have been received in the detention facility since 2002. Although some 270 have since been released without charge, almost 500 still remain. These include 220 from Afghanistan, 119 from Saudi Arabia, 94 from Yemen, 57 from Pakistan and smaller numbers of men from 35 different countries. Although all eight British citizens have been released, there remain another eight men who claim to have long-term British residency permits.
	I consider the United States to be a great friend and ally of this country, not merely through historical ties or present circumstances, but because of the very real values and interests that our countries share. As the Attorney-General remarked, the US is a great beacon of freedom, liberty and justice. That is the basis on which the strongest arguments can be made against the detention camp in its present form. Every day that those men are made to wait to face justice is a day that degrades the reputation of the US.
	That reputation for fairness and equal treatment, whatever one's race, religion or ethnicity, is one of the greatest tools we have in the battle for the hearts and minds of millions across the world and in the face of propaganda by such organisations as al-Qaeda. In that context, the existence of Guantanamo Bay damages the efforts of the American and British Governments to isolate the terrorists and prevent them from recruiting further converts to their cause. It helps extremists to fuel perceptions that the US, and the west in general, targets Muslims and denies them their human rights.
	The agenda of such extremist groups is obvious and can be discounted. What cannot be ignored is the list of independent and respected Governments and non-governmental organisations that have made clear their opposition to the camp's existence. The UN Secretary-General, Kofi Annan, has called for the camp's closure. Organisations such as Amnesty International and Human Rights Watch have been consistent in their condemnation. Amnesty is concerned at news of hunger strikes and suicide attempts by inmates and has called Guantanamo a moral disgrace, an emotional abyss for those affected and a legal black hole.
	As I said earlier, it can be seen from the number of hon. Members in their places, including my hon. Friends the Members for Kingston upon Hull, North (Ms Johnson), for Tooting, for Islington, South and Finsbury (Emily Thornberry), for Hackney, North and Stoke Newington and for Brent, South (Ms Butler), that this issue is of real concern. The legal arguments surrounding Guantanamo have become complex and polarised, with no consensus existing. None the less, it is a popular view, at least outside the US, that the basis for the detention camp rests on shaky legal foundations.
	The right to fair trial without prolonged detention is a fundamental and well-established tenet of international law, which is explicit in articles 10 and 11 of the universal declaration of human rights and articles 14, 15 and 16 of the international covenant on civil and political rights. If it is argued that the laws of war apply, the Geneva convention has strict criteria governing the treatment that prisoners of war should receive.
	The US Government argue that those prisoners are not in legal limbo but, pending a decision by the US Supreme Court, are nearing the time at which they will face trial before the military commission. Within the judicial process, it is claimed, the accused will have two opportunities to appeal to a fully civilian federal appeals court. However, that is not a reason to believe that the transportation of hundreds of individuals thousands of miles from their homelands and families and their imprisonment for years before trial is in any way justifiable.
	Unfortunately, whatever the legal basis for the detention, the damage has been done. It is now a popular view in this country and other countries that the US Government have operated outside international law, with a clear disregard for the concerns of the international community and its closest friends.
	In a series of statements from the State Department and the Department of Defence, the US has condemned the use of torture or inhumane techniques and pledged to prosecute any citizen found to have committed such acts. However, last week the United Nations committee against torture published its report on the detention policies of the US and judged them according to the convention against torture that the US ratified in 1994. The report concluded that the conditions for prisoners at Guantanamo Bay constituted torture and called for the camp to be closed as soon as possible.
	Allegations of torture must be taken seriously. The right not to face torture or inhumane or degrading treatment is an absolute right. After the appalling images of torture at committed by soldiers at Abu Ghraib prison in Iraq, it is essential that the United States and our Government make every possible effort to make it clear that any such abuse is unacceptable and should not take place. Unfortunately, in the case of Guantanamo, the closed nature of the camp, where even UN officials were prevented from meeting detainees without first signing a confidentiality agreement, has ensured that serious allegations about treatment proliferate.
	What we know comes from the American Army's Schmidt report, which details techniques also known as torture lite. Many of sections of the Schmidt report are still censored, but it details techniques such as 18 to 20 hours a day of questioning for 48 in 54 days, blasting prisoners with strobe lights and ear-splitting rock music, the use of snarling dogs, threatening to hurt detainees' families and sexual humiliation. On that basis, I propose that a delegation of British parliamentarians be allowed to visit the detention complex in Guantanamo to assess the treatment of detainees. I should be grateful for the Minister's support for such a visit. If that is not possible, he should consider arranging a visit by our excellent Attorney-General so that he can assess the conditions of the detainees, as he has made his interest in the matter clear.
	Sir Winston Churchill noted that America always does the right thing after exhausting every possible alternative. In the case of Guantanamo, our ally is running out of alternatives and I am sure that, in the fullness of time, Washington will indeed do the right thing. I call on the Minister and his Department to help to ensure that that happens sooner rather than later. In particular, will the Minister clarify his position about the continued imprisonment of eight individuals who claim to hold British residency?
	On Thursday 5 May, representatives of two of those men lost a bid at the High Court to force the Foreign Secretary to intervene on their behalf. A Foreign Office spokesman said that the Foreign and Commonwealth Office was unable to provide consular assistance to
	those who are not British citizens
	which is a very strict interpretation of the Foreign Office remit. British diplomatic influence is not solely limited to the protection of British citizens; it also applies to British interests, which include upholding the principle of inalienable human rights. For example, Abdul Rahman is an Afghanistani who, on conversion to Christianity, was threatened with the death penalty. At the time, the Minister was on the record as deeply troubled by the case and he sought urgent clarification from the Afghan authorities. I commend him for having done so. Mr. Rahman was not British; indeed, he was on the other side of the world at the time. Surely, that is a common precedent whereby the Government can represent our concerns about the men with British residency held at Guantanamo. Will the Minister make such representations?
	The Prime Minister will be meeting President Bush later this week. I hope that he will use that visit to state the Government's concerns about the situation in Guantanamo Bay. Will the Minister confirm that that will happen?
	I also ask the Minister whether he would consider positioning the UK in the role of co-ordinator for those countries that still have detainees imprisoned at Guantanamo. The UK's relationship with the United States and its experience of having a number of citizens detained at that facility for years would allow the Foreign Office to operate in that much-needed capacity. However, such measures would be only half a solution. The problem with Guantanamo Bay is the existence of the detention facility, the way that it operates and the image that it presents to the world. It runs counter to the fundamental values that we hold dear and wish to protect: the right to fair trail, the right not to be tortured or treated inhumanely and the belief in the strength of openness, transparency and accountability. I call on the Minister to support the view of the Attorney-GeneralGuantanamo Bay must close, and it must close now.

Kim Howells: I congratulate my hon. Friend the Member for Leicester, East (Keith Vaz) on securing the debate, and I welcome the opportunity to debate these issues today. First, I want to reiterate the Government's position on Guantanamo. We have made it clear that we regard the circumstances under which detainees continue to be held at Guantanamo Bay as unacceptable. The US Government know our views. As my right hon. Friend the Prime Minister has said as recently as four days ago, it would be better if Guantanamo were closed.
	We continue to raise these concerns in our regular discussions on detainee-related issues with the US Government. We seek to ensure that the handling of detainees is consistent with the British Government's other objectives, including preventing further terrorist attacks, undermining the work of those who recruit terrorists and upholding respect for human rights and the rule of law. As we do so, let us reflect on the circumstances that led to Guantanamo Bay.

Diane Abbott: Will my hon. Friend give way?

Kim Howells: No, I am afraid not. If my hon. Friend will allow me, I have not much time in which to answer a very big contribution.
	As my hon. Friend has reminded us, almost 3,000 people were killed during the terrorist attacks on11 September 2001. As the Foreign Secretary told the Foreign Affairs Committee on 15 March, if September 11 had happened in this country rather than the United States, it would have changed our politics and security parameters just as it has changed those of the Americans.
	It is also important to recognise the dilemma faced by the US Government in considering Guantanamo's futurehow to balance collective security and respect individuals' human rights at the same time. More than 270 detainees have been moved from Guantanamo back to their home countries or their country of origin. Many more are being considered for the same, under arrangements designed to ensure that they will be treated humanely on their return. That is not an easy process; it will take time.
	We expect the United States to be an example of fairness and justice, where civil liberties and human rights are protected and cherished. Sadly, they are not protected and cherished in some countries. Indeed, there are places where they hardly exist at all. The question is what happens to those who are left. One obvious answerwe have heard from some quarterswould be to release all the detainees at Guantanamo. I fear that that would not be entirely wise. It would hardly serve not only the US Government's own citizens but everyone else in the world if the Americans were suddenly to release people who could return to terrorism, as some of those already released have.
	My hon. Friend's question raises a number of detailed issues that I am happy to try to address this evening. First, on the legal aspects of indefinite detention, it is useful to understand the US Government's legal position, even if one does not necessarily agree with it. The US Government believe that they are in a continuing state of at least potentially worldwide armed conflict with al-Qaedathat is, at war. They believe therefore that the laws of armed conflict apply to those whom they detain. The US Government's view is that under the laws of armed conflict, they are entitled to detain people until that war is over, as they did, for example, during world war two, when again no one knew how long the conflict would last.
	The British Government's view is that, whatever the status of the so-called global war on terror, the detainees at Guantanamo are entitled to humane treatment and, if prosecuted, to a fair trial. We have made that clear to the United States authorities. The United States is well aware of the UK's opposition to the death penalty under all circumstances. In private diplomatic discussions, at both ministerial and official levels, the UK has made its views known to the US Government and has made representations to them about the circumstances in which, and conditions under which, detainees are held at Guantanamo.
	After a lengthy series of discussions with the US, which were led for the Government by the Attorney-General, in 2004 the Government concluded that the military commissions process would not provide sufficient guarantees of a fair trial according to international standards. That eventually led to the release and return of the British detainees at Guantanamo. I am sure that hon. Members will be aware that most of the military commission's proceedings have been stayed, pending a US Supreme Court decision in June on the right of the detainees to challenge the legality of their detention.
	My hon. Friend raised the question of torture and other allegations of abuse at Guantanamo. Let me make our position on torture absolutely clear. The United Kingdom condemns unreservedly the use of torture and works hard with its international partners to eradicate that abhorrent practice. We abide by our commitments under international law, including the UN convention against torture and the European convention on human rights, and we expect all other countries to comply with their international obligations. We are active in pressing them to deliver on those human rights commitments.
	The US Government have given repeated assurances on this matter and on the treatment of detainees. Those assurances include the detailed public statement made by the US Secretary of State, Dr. Condoleezza Rice, on 5 December 2005, which confirmed that the US respects the rules of international law, including the UN convention on torture. Dr. Rice stated that the US does not authorise or condone the torture of detainees, and that torture and conspiracy to commit torture are crimes under US law wherever they may occur in the world. In addition, the US Detainee Treatment Act, which was enacted on 30 December 2005, provides that no individual in the custody or under the physical control of the US Government, regardless of nationality, shall be subject to cruel, inhuman or degrading treatment or punishment. That legislation makes a matter of statute what President Bush has made clear was already US Government policy.
	My hon. Friend has reminded the House of a report submitted on 15 February by five holders of mandates of special procedures of the UN Commission on Human Rights. A number of serious criticisms about the reported situation of detainees in Guantanamo Bay were made in that report. In their formal reply on 10 March, the US Government strongly objected to the report both in terms of process and of substance, and argued that factual and legal assertions in it were inaccurate and flawed. It is clearly important that the US Government and the UN continue to engage on those issues.
	My hon. Friend listed some of the techniques allegedly used at Guantanamo. Those allegations have surfaced previously in relation to UK nationals. I want to make it clear that, we take allegations of abuse and mistreatment made by UK nationals previously held at Guantanamo very seriously. In respect of the British detainees, we raised concerns about issues including isolation, lack of access to daylight, lack of exercise and delays with mail. We pursued those concerns with the US authorities and secured a number of improvements in the physical conditions of the detention of the detainees, as well as improvements to the exercise regime and mail service.
	The nine visits made by Foreign and Commonwealth Office officials to check on the British detainees' welfare showed us that, overall, the detainees appeared in sound physical health. The families of the detainees were given read-outs of the visits and statements were made to Parliament. Our visits found that medical facilities at Guantanamo were of a high standard. On each of the nine visits, we gave the British detainees the opportunity to express concerns about their treatment. None of them alleged to us that they were systematically mistreated at Guantanamo.
	Over the past few months, several right hon. and hon. Members have raised the circumstances of the former UK residents who are detained in Guantanamo. It is the longstanding policy of the UK Government not to offer consular assistance to non-British nationals, except in cases in which a specific agreement to do so exists with another state. My hon. Friend spoke of exceptions to that rule, such as the case of Abdul Rahman, the Christian convert in Afghanistan who faced the threatit was a remote possibilityof the death penalty.
	Hon. Members will no doubt be aware of the recent judicial review of the former Foreign Secretary's decision not to make formal representations to the United States Government for the release and return to the UK of three of the detainees held at Guantanamo Bay who were formerly resident in the UK. The court held that there was no duty on the Foreign Secretary in domestic or international law to make the formal request sought by the claimants. The claimants have been granted leave to appeal, so it would not be appropriate for me to say any more about the case at the moment.
	The court also recognised that the Government have made informal representations on humanitarian grounds to the US Government in respect of the detainee claimants. In 2005, my predecessor, Baroness Symons, agreed exceptionally to meet the families and representatives of those detainees who we knew were formerly resident in the UK, but were not British nationals, on a humanitarian basis. We passed on the concerns expressed to us by the families to the US authorities.
	I fully agree with my hon. Friend that there needs to be greater understanding of how Guantanamo operates. A visit by, say, the Foreign Affairs Committee would clearly help to achieve that. I understand that the Committee is already in touch with the US Administration about visiting the detention facility at Guantanamo Bay.
	As I have said, it is important that we never forget the context in which Guantanamo came about: the slaughter of 3,000 innocent people on 11 September. That was followed by atrocities in Madrid, Bali, Sharm el Sheikh, Amman, Istanbul, Riyadh and Moscow, and then last summer by the attacks on the London underground. The intent is clear. In Iraq and Afghanistan, the terrorists want to destroy new-found freedom and democracy and to kill people. I was in Baghdad when al-Zarqawi's suicide bombers murdered hundreds of innocent Shi'a Iraqis in just a couple of bloody days. Understandably, I suppose, the fate of those poor people has not been the subject of intense legal and human rights scrutiny in the way in which the detaining of terrorist suspects at Guantanamo has. We do not expect civilised behaviour from al-Qaeda henchmen, but we should not forget that those people had human rights, too. It is right that Britain should stand firm with our friends and allies against such evil.
	All of us who care for the cause of civil liberties and human rights should pause and recall that those who were so brutally murdered in London on 7 July and in many other atrocities had human rights. Self-appointed executioners took those rights away from them, so we will continue to pursue those who commit acts of terrorism. At the same time, we shall maintain absolutely our commitment to civil liberties and human rights.

Emily Thornberry: Will my hon. Friend give way?

Kim Howells: No, I will not.
	It will not surprise my hon. Friend the Member for Leicester, East that it is not in my gift, nor, indeed, in the UK Government's, to close Guantanamo Bay. Our position is clear and consistent: it would be better if Guantanamo were closed. We will do what we can to bring that about, but hon. Members should recognise that that is not an easy task and that balancing security and liberty never has been easy.
	 Question put and agreed to.
	 Adjourned accordingly at twenty-eight minutes past Ten o'clock.